EXHIBIT 10.4
MANAGEMENT AND LEASING AGREEMENT
This Management and Leasing Agreement ("Agreement"), dated as of this day
of November, 1999 and effective December 1, 1999 (the "Effective Date") by and
between First Union Real Estate Investments, Inc. (hereinafter "Owner"), and
Landau & Xxxxxx of Arkansas, Inc. (hereinafter "Manager"); and
WITNESSETH
A. WHEREAS, Owner or an entity controlled by Owner owns certain assets and
property commonly known as Park Plaza Mall and is legally described in Exhibit A
hereto (hereinafter the "Property"); and
B. WHEREAS, Owner desires to engage Manager as an independent agent and as
its exclusive property manager for the Property and in connection therewith to
manage, market, lease and operate the Property as the sole and exclusive
management and leasing Manager having responsibility therefor, on the terms and
conditions hereinafter set forth; and
C. WHEREAS, Manager desires to accept such employment and is engaged in the
business of managing, leasing, operating and maintaining properties; and
D. WHEREAS, as of the date of this Agreement, Park Plaza Mall is owned free
and clear of any debt. Owner shall have the right to and may at any time
encumber the property with debt. In such events any documents relating to any
debt encumbering the Property shall hereinafter be referred to collectively as
the "Loan Documents".
E. WHEREAS, Owner and Manager agree that where the terms of this Agreement
are in conflict with the terms of any of the Loan Documents, if any, the terms
of the Loan Documents, if any, shall govern and control.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
The parties hereto agree that the recitals set forth above shall be deemed
incorporated into the Agreement as if fully set forth herein.
ARTICLE 1. Property.
The Property shall consist of all of Owner's real and personal property now
or hereafter situated on the parcel described in Exhibit A hereto, except as to
such items of personal property as Owner may from time to time exclude.
ARTICLE 2. Term/Termination.
2.1 Initial Term. Manager's duties and responsibilities under this
Agreement shall begin on the 1st day of December, 1999 and shall end on the 30th
day of November, 2000. Notwithstanding the foregoing, Owner shall do all
accounting and reporting for the month of December, 1999 and relating to
calendar year 1999, and the compensation due to Manager shall be reduced by the
amount equal to Owner's payroll for the month of December, 1999 for employees of
Owner located off site at the Dallas office of First Union Real Estate
Investments, who are in management and support functions relating to the
Property and who became employees of Manager during the month of January, 2000.
2.2 Renewal Term. Unless written notice to the contrary is given by either
party hereto not less than thirty (30) days prior to the end of a term
hereunder, this Agreement shall automatically be renewed for additional
successive one (1) year terms on its then existing terms and conditions,
provided that the Agreement is in effect upon the date notice is required to be
given.
2.3 Termination.
(a) Major Default by Manager. Notwithstanding the provisions of
Sections 2.1 and 2.2 above, this Agreement may be immediately terminated by
Owner, upon the occurrence of any of the following circumstances:
(i) Manager is unable or unwilling or does not have the ability
to honor any of its financial obligations in the conduct of its
business operations with respect to the Property; or
(ii) A voluntary order for relief in bankruptcy is entered
against Manager, or Manager files any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief for itself under any present or future
applicable statute or law relative to bankruptcy, insolvency, or other
relief for debtors, or seeks or consents to or acquiesces in the
appointment of any trustee, receiver, conservator, or liquidator of
Manager or of all or any substantial part of its property (the term
"acquiesce," as used herein, being deemed to include, but not be
limited to, the failure to file a petition or motion to vacate or
discharge any order, judgment or decree providing for such appointment
within the time specified by law); or
(iii) An involuntary petition is filed against Manager seeking
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under the present or any
future applicable statute or law relating to bankruptcy, insolvency,
or other relief for debtors, or any trustee, receiver, conservator or
liquidator of Manager or of all or any substantial part of its
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property shall be appointed without the consent of Manager and such
petition shall not be dismissed for thirty (30) days; or
(iv) Manager gives notice to any governmental body of insolvency
or pending insolvency, or suspension or pending suspension of
operations; or
(v) Manager makes an assignment for the benefit of creditors or
takes any other similar action for the protection or benefit of
creditors; or
(vi) Manager is engaged in negligence, fraud, malfeasance,
non-feasance, or bad faith as it pertains to this Agreement.
(b) Minor Default by Manager. Owner may terminate this Agreement upon
thirty (30) days' written notice to Manager if Manager shall default in the
performance of any of its respective duties and obligations hereunder, unless
the default is cured within said thirty (30) day period.
In addition to the termination rights set forth in this Section 2.3, Owner
shall be entitled to all of its rights and remedies at law or in equity.
2.4 Default bv Owner. If Owner defaults in any respect in performing any of
its obligations under this Agreement and such default is not cured within thirty
(30) days after written notice thereof is given by Manager to Owner, then
Manager shall have the right to terminate this Agreement by giving written
notice to Owner. In connection with any termination of this Agreement by Manager
hereunder, Manager's sole remedy shall be to recover any past amounts due from
Owner.
2.5 Additional Termination Rights. Anything herein contained to the
contrary, notwithstanding, this Agreement may be terminated without cause:
(a) By Manager, upon sixty (60) days' prior written notice to Owner.
(b) By Owner upon sixty (60) days' prior written notice to Manager.
(c) If Owner shall sell the entire Property to an unrelated third
party, this Agreement shall terminate with respect to the Property as of
the date of consummation of the sale.
2.6 Early Termination Payments. If Owner elects to terminate this Agreement
pursuant to Section 2.5(b) above not as a result of any cause of Manager, or if
the Agreement terminates pursuant to Section 2.5(c) above:
(a) during the period December 1, 1999 through May 31, 2000, Owner
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shall pay Manager the sum of $60,000 upon the termination of this Agreement; or
(b) during the period June 1, 2000 to November 30, 2000, Owner shall
pay Manager the sum of $30,000 upon the termination of this Agreement.
The foregoing payments shall not be construed as penalty provisions but
reasonable sums which the parties agree compensate Manager for establishing the
requisite management systems required pursuant to this Agreement.
2.7 Effect of Termination. Upon termination of this Agreement for any
reason, Manager and Owner shall account to each other for all matters
outstanding with respect to this Agreement and in furtherance of that end,
Manager shall deliver to Owner the following with respect to the Property:
(a) A final accounting, in the form of a period-end financial
statement, reflecting the balance of income and expenses and assets and
liabilities on the Property as of the date of termination to be delivered
within thirty (30) days after such termination or withdrawal.
(b) Any balance or monies of Owner or tenant security deposits, or
both, held by Manager with respect to the Property to be delivered
immediately upon such termination, except any amounts Manager is owed
pursuant to this Agreement, including amounts earned pursuant to the
Protected Tenant List as defined in Exhibit B hereto. Notwithstanding the
preceding sentence, in the event this Agreement is terminated for cause
pursuant to Section 2.3(a) or (b) hereof, Manager shall immediately deliver
all balances or monies of Owner.
(c) All original books, records, contracts, leases, receipts for
deposits, unpaid bills and other papers, insurance policies, bills of
sales, leases, licenses, service contracts, permits, plans, owned and
leased equipment, tools, supplies, keys and computer information downloaded
to a common ASCII file, or onto diskette or other information storage
device, if possible, and documents then in Manager's possession, which
pertain to the Property shall be delivered immediately upon such
termination. Upon such termination Owner will assume responsibility for
payment of all unpaid bills authorized by the Approved Property Budget.
Owner further agrees that it will honor and pay for all open, unexpired, or
incomplete contracts entered into by Manager on Owner's behalf or for the
benefit of the Property which exists as of the date of termination of this
Agreement if such contracts were entered into in accordance with the terms
of this Agreement.
(d) A leasing status report of all prospective tenants and/or proposed
leases, including the name and address of proposed lessee. ("Prospective
Tenant List" as defined in Exhibit B.)
Manager shall do what is reasonably necessary for an orderly transition of
documents.
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The termination of this Agreement under the provisions of this Article 2
shall not affect the rights of either party with respect to any damages it has
suffered as a result of any breach of this Agreement, nor shall it affect the
rights or obligations of either party with respect to liability or claims
accrued, or arising out of events occurring, prior to the date of termination,
all of which shall survive such termination.
ARTICLE 3. Management Responsibilities.
3.1 Employment of Manager. Subject to the terms and agreements herein
contained, Owner hereby appoints Manager as the exclusive property manager and
leasing agent for the Property.
Manager hereby accepts such appointment on the terms and conditions
hereinafter set forth.
Manager shall cooperate with Owner with respect to the requirements of the
Loan Documents, if any.
Manager shall have no right or authority, express or implied, to commit or
otherwise obligate Owner or to enter into any agreement on behalf of Owner or to
encumber or lease the Property in any manner whatsoever except to the extent
specifically provided in Sections 3.4, 3.5, 3.18 hereof.
The term "Management Responsibilities" as used herein shall refer to any
and all duties of Manager as illustrated in Article 3 particularly, and in this
Agreement generally.
All actions, undertakings and performances by Manager pursuant to this
Agreement and to an Approved Property Budget, as defined in Section 7.3, shall
be at Owner's sole cost and expense, except as provided in Section 10.5 of this
Agreement.
Any press releases, publicity statements or promotional materials regarding
this appointment or this Agreement shall be issued by Manager subject to Owner's
prior written approval and Manager shall bear the expense (which, if approved by
Owner, shall be reimbursed by Owner) of the preparation, distribution and
dissemination of any such statements.
3.2 General Duties.
(a) Manager, on behalf of Owner, shall implement, or cause to be
implemented, the decisions of Owner and shall conduct the ordinary and usual
business affairs of Owner for the Property as provided in this Agreement.
Manager shall use reasonable commercial efforts to conform to all reasonable
policies and programs established from time to time by Owner and the scope of
Manager's authority shall be expressly limited in accordance with said policies.
Manager agrees to use reasonable commercial efforts in the management, leasing
and operation of
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the Property, and to comply with the terms and conditions of this Agreement.
(b) Manager shall manage, lease, operate and maintain the Property in
an efficient and satisfactory manner. Manager agrees to:
(i) Do and perform, or cause to be done or performed, all things
necessary, required or desirable in the judgment of Owner and/or as
agreed between Owner/Manager for the proper and efficient management,
operation and maintenance of the Property, and
(ii) Faithfully and diligently render the services on its part to
be performed hereunder during the term hereof Manager shall act in a
commercially responsible capacity with respect to the proper
protection of, and accounting for, Owner's assets. In this capacity,
Manager shall conduct itself at arm's length with all third parties
and Manager shall serve Owner's interests at all times.
3.3 Leasing Activities. Manager shall perform all leasing activities
pursuant to Article 4 and Exhibit B.
3.4 Maintenance Repairs and Alterations.
(a) Manager shall arrange for the maintenance, repair, and alteration
of the improvements comprising the Property in order to maintain the
improvements in a safe, sound, attractive, and rentable condition in accordance
with an Approved Property Budget and with commercially reasonable standards of a
mall this size, age and market location.
(b) Manager shall make or cause to be made periodic physical
inspections of the Property and shall provide Owner with its evaluations and
recommendations. Any expenditures incurred as a result of such inspections
performed by third party consultants shall be paid by Owner. If Owner requires a
third party consultant to provide roof borings or environmental studies or any
such specialized services, the cost therefor shall be borne by Owner.
(c) Manager shall not make or incur, without Owner's written approval,
expenditures:
(i) for the maintenance, repair, or alteration of the
Property in excess of five percent (5%) over the amount set forth
in the then current Approved Property Budget, as hereinafter
defined; or
(ii) greater than Ten Thousand Dollars ($10,000.00) if such
expenses are not set forth in the Approved Property Budget; or
(iii) greater than Twenty-Five Thousand Dollars regardless
of whether such expenses are set forth in the Approved Property
Budget.
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Notwithstanding the foregoing, Manager may make, without first obtaining
Owner's approval, expenditures for emergency repairs to the Property which, in
Manager's opinion, are required for its preservation and safety, or to avoid the
suspension of any service, or to avoid danger to life or property at the
Property. Manager shall inform Owner as soon as reasonably possible, both orally
and in writing, and in no event later than twenty four (24) hours from the time
Manager learns of the emergency of any such emergency expenditure.
(d) Upon approval by the Owner in writing, Manager shall arrange for
and/or supervise major reconstruction or repair of improvements to the Property.
Major reconstruction or repair shall mean work involving an estimated cost less
than Fifty Thousand Dollars ($50,000.00) which amount shall be increased each
calendar year commencing January 1, 2001, by three percent (3%). Except for
emergencies which require twenty-four (24) hour notice as provided for above,
all reconstruction shall require the consent of the Owner.
3.5 Utility Services. Manager shall arrange for, and may enter into on
behalf and in the name of Owner, contracts for electricity, gas, fuel, water,
telephone, rubbish removal, and other utility services as Manager shall deem
advisable and necessary.
3.6 Collection of Rents and Other Income.
(a) Subject to the requirements of the Loan Agreement and the Deposit
Account Agreement (as defined in the Loan Agreement), which provides for the
direct payment of rent by Tenants into the Clearing Account, Manager shall
diligently collect all rents (including escalation xxxxxxxx resulting from
increases in expenses, taxes, insurance and common area maintenance charges) and
any other fees and charges which may become due at any time from tenants of the
Property, (the "Tenants") or from others for services provided in connection
with or for the use of the Property or any portion thereof and to collect and
identity any income due Owner from miscellaneous services provided to Tenants or
the public including, without limitation, parking income, all revenues from work
orders, construction charges, loading dock and elevator charges, supervisory or
approval charges, license fees, tenant storage, and coin operated machines of
all types (e.g., vending machines, pay telephones, etc.). Notwithstanding
anything to the contrary in this Agreement, Manager shall only be required to
xxxx Tenants annually as follows: a) a statement setting forth new charges; b)
settlement statements for all recovery charges; and c) a detailed invoice for
all delinquent charges. All monies so collected shall be deposited in the
Clearing Account (as defined in the Loan Agreement).
(b) Manager may not terminate any Lease, lock out Tenants, institute
suit for rent or for use and occupancy, or initiate proceedings for recovery of
possession of any tenant space unless such action is approved by Owner. Manager
shall, on behalf of Owner, utilize commercially reasonable collection procedures
as Owner deems appropriate to collect any past due rents or other charges or
income with respect to the Property. In connection with any collection efforts
only legal counsel or collection firms designated by Owner shall be retained or
if Manager so retains, then only if Owner has provided written approval thereof
All legal expenses
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incurred in bringing such approved suit or proceeding shall be submitted to
Owner and paid for from the Operating Account, as hereinafter defined.
3.7 Banking and Cash Collections.
(a) All monies collected or received by Manager with respect to the
Property shall be deposited in such accounts as shall be required under the Loan
Documents, if any.
(b) Funds may be withdrawn from the Operating Account as
defined in Section 9.1 and 9.2 only for purposes authorized under this
Agreement. Funds shall not be withdrawn to the order or benefit of Manager,
except as provided in this Agreement.
(c) Manager is hereby authorized, and shall have the right from time
to time, to designate those employees of Manager who will be authorized
signatories for the Operating Account. All checks in an amount less than, but
not equal to, $5,000.00 shall be signed by an authorized signatory pre-approved
by Owner in writing; all checks of $5,000.00 or greater shall be signed by two
authorized signatories pre-approved by Owner. At all times at least one of the
two authorized signatories signing each draft shall be from Manager's corporate
office.
(d) Manager shall not be responsible for provision of funds that are:
(i) pursuant to the Approved Property Budget; (ii) the subject of separate Owner
approval; (iii) expended in the ordinary course of business for the benefit of
the Property; (iv) to perform Manager's obligations hereunder, including on-site
personnel costs; and (v) for the timely payment of all costs and expenses
incurred for the Property if the funds collected or received by Manager from
Tenants are not sufficient to pay such costs and expenses as and when due.
(e) Manager shall remit to Owner upon Owner's written instructions,
from time to time such portion of the cash balance in the Operating Account not
required for the operation of the Property, consistent with the terms of the
Loan Documents, if any, but no less frequently than quarterly.
(f) The books and records relating to the Property shall be kept and
maintained by Manager at the Property, and at Manager's principal office in
Chicago, Illinois. Owner or its duly authorized agent, shall have the right to
examine such books and records at any time during normal business hours.
3.8 Owner's Funds.
(a) Manager shall maintain at its expense a fidelity bond or
comparable insurance policy in an amount not less than Two Million Dollars
($2,000,000) covering all of Manager's employees and officers handling Owner's
funds pursuant to this Agreement.
(b) Manager shall be responsible for losses of funds collected by
Manager on
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Owner's behalf caused by the negligence or willful misconduct of Manager or its
employees.
(c) Manager shall transfer excess cash funds to Owner based upon
guidelines, as shall be set forth in writing by Owner, which may be modified by
Owner in its sole discretion from time to time.
(d) All cash balances maintained by Owner shall be invested based on
Owner's criteria as shall be set forth in writing by Owner, which may be
modified by Owner in its sole discretion from time to time.
3.9 Reports Budget and Statements. Manager shall furnish Owner and Lender
with the financial information concerning the operation of the Property pursuant
to Article 7 hereof and all of the financial reports and statements required to
be delivered to the Lender pursuant to the Loan Documents, if any.
3.10 Taxes.
(a) Manager shall review or cause to be reviewed the annual tax
assessments imposed by any governmental authority against the real or personal
property of the Property and shall provide a written report thereon to Owner.
(b) Manager shall cooperate with Owner in any proceedings instituted
by Owner contesting or appealing the assessed valuation of the real or personal
property of the Property.
(c) Manager shall advise Owner of all material matters coming to its
attention pertaining to real and personal property taxes and assessments of the
Property and any other information not set forth in the Approved Property Budget
or the Monthly Financial Reports as defined in Section 7.3(a).
(d) Manager subject to the provisions of the Loan Documents, if any,
shall cause all real property and all personal property taxes to be paid timely
so long as sufficient funds are available in the Bank Accounts.
3.11 Optional Services. Except as otherwise provided herein, Manager shall
not be required to provide the services set forth in the Optional Services
exhibit, Exhibit F hereof, not normally associated with the day-to-day
management of the Property, (the "Optional Services"). Any Optional Services
shall only be performed upon the written request of Owner and/or in accordance
with the Approved Property Budget.
3.12 Intentionally Omitted.
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3.13 Employees, Independent Contractor. Manager shall have in its employ at
all times a sufficient number of capable employees to enable it to properly,
adequately, safely and economically manage, lease, operate, maintain and account
for the Property. All matters pertaining to the selection, direction,
employment, supervision, compensation, promotion and discharge of such employees
are the sole responsibility of Manager, who is in all respects the employer of
such employees. To the extent necessary for the conduct of the Management
Responsibilities, Manager shall hire personnel who, in each instance, shall be
employees of Manager, and not of Owner. All compensation and related benefits
owed to on-site employees, to the extent included in the Approved Property
Budget or Operating Budget for the prior year, whichever is then in effect,
shall be reimbursed to Manager by Owner. Notwithstanding any provision to the
contrary in this Agreement, Manager agrees to retain as its employees Jet
Xxxxxxx and Xxxx Xxxxxxx. These employees shall be assigned to work on the
Property and the following other malls which Owner owns or has an interest in:
Pecanland Mall, Temple Mall and Westgate Town Center on a non-exclusive basis
(it being understood that Manager will utilize the same employees to work on
other properties in Manager's portfolio.) The work of the specified employees
may be supplemented by other employees, but the employment of the specified
employees is viewed as critical by Owner to the successful management of the
Property and as such Manager agrees that without the prior written consent of
the Owner it will not replace or assign away from the Property any of the
specified employees. If any of the specified employees is replaced or assigned
away from the Property while still in the employment of Manager without Owner's
prior written consent, it shall constitute a Minor Default by Manager pursuant
to Section 2.3 (b) of this Agreement, and Owner may terminate this Agreement
upon thirty (30) days' written notice to Manager. However, should either one of
these named employees leave the company, voluntarily or unvoluntarily, the
termination of employment in and of itself will not constitute a Minor Default.
Manager shall have responsibility for, and shall use reasonable commercial
efforts to comply with, all applicable laws and regulations having to do with
workers' compensation, social security, unemployment insurance, hours of labor,
wages, working conditions, and other employment/labor related subjects; however,
any legal costs incurred in the defense of any action brought by an employee
working at the Property prior to the date of this Agreement pursuant to an
alleged or actual violation prior to the date of this Agreement of any
employment statute or law, including, but not limited to, any federal or state
statue or local ordinance (e.g., race, sex, age, national origin, citizenship
status, disability, etc., discrimination claims under Title VII of the Equal
Employment Opportunity Act, the Age Discrimination in Employment Act, the
Americans with Disability Act, any applicable state or local human rights act or
any similar law or act, or at common law (e.g., contract or tort claims as well
as any claims for reinstatement or rehire) shall be paid by Owner.
3.14 Intentionally Omitted.
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3.15 Compliance with Laws. Agreements.
(a) Manager shall and shall cause the Property to comply with all
applicable federal, state and municipal laws, ordinances, rules,
regulations and orders relating to the use, operation, repair and
maintenance of the Property and with laws, ordinances, rules, regulations
and orders of the local Board of Fire Underwriters or other similar body,
if any. Manager, at its own expense shall comply with all the requirements
necessary and applicable to Manager to enable Manager to perform its
obligations (e.g., broker licenses). Owner shall bear any reasonable
expense incurred to cause the Property to comply with this Section 3.15(a),
as we as those extraordinary expenses for which Owner has given prior
written approval.
(b) Manager, to the extent permitted under the Approved Property
Budget and, when not so permitted, following written authorization from
Owner, shall promptly remedy any violation of any such federal, state or
municipal laws, ordinances, rules, regulations and orders relating to the
use, operation, repair, operation and maintenance of the Property, except
in cases where Owner is contesting or intends to contest such law,
ordinance, rule, regulation or order, in which case Owner shall give
Manager prompt written notice of its decision to so contest any laws,
ordinances, rules, regulations and orders. Manager shall give prompt
written notice to Owner of any violation or notice of alleged violation of
any laws, ordinances, rules, regulations and orders.
(d) Owner and Manager agree to cooperate with each other to cause the
Property to be operated at all times in compliance with all applicable
federal, state and municipal laws, ordinances, rules, regulations and
orders and shall not knowingly, directly or indirectly, suffer, permit or
make any use of the Property which is prohibited by any such laws,
ordinances, regulations, rules and orders.
(d) Manager shall fully comply with all terms and conditions
contained in the Loan Documents, if any, and any ground lease, space lease,
mortgage, deed of trust or other security instruments now or hereafter
affecting the Property, provided that Manager has been advised by Owner of
the existence thereof, and provided, further, that Manager shall not be
required to make any payment (except to advance monthly debt service
payment, if any) or incur any liability on account hereof. Owner will guide
and advise Manager on appropriate compliance with the Loan Documents, if
any.
(e) Expenses incurred in remedying violations may be paid from the
Operating Account, as defined in Section 9.1. When more than such amount is
required or if the violation is one for which the Property title holder
might be subject to penalty, Manager shall notify Owner immediately but no
later than the end of the second business day so prompt arrangements may be
made to remedy the violation.
3.16 Supervision of Tenants. Manager shall plan and coordinate the moving
in and moving out of Tenants in the Property and shall monitor any construction,
alteration and
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decoration work pursuant to Tenant Leases.
Manager shall receive and use reasonable commercial efforts to attend to
and resolve all complaints of Tenants and to resolve any complaints, disputes or
disagreements by or among Tenants but shall not expend any money in any instance
to settle any dispute with Tenants without the prior written consent of Owner.
Manager shall adopt and promulgate, at the direction of Owner, reasonable
rules and regulations (the "Rules and Regulations") from time to time, regarding
the use and operation of the Property, including, without limitation, the
erection and maintenance of exterior signs upon the Property, the designation of
parking areas for the use of employees of Tenants and the hours during which
Tenants shall be required to keep signs and windows lighted.
Manager shall monitor the operation of all Tenants to insure their
compliance with the terms and provisions of their respective leases and the
Rules and Regulations.
Manager shall notify the respective Tenants and Owner of any Lease
violations and use reasonable efforts to cause all Tenants to correct any
violations promptly.
3.17 Supplies. At Owner's expense and in accordance with the Approved
Property Budget, Manager shall purchase, provide and pay for all janitorial and
maintenance supplies, tools and equipment, restroom and toilet supplies,
electrical supplies and light bulbs, boiler room supplies, paints, uniforms,
stationery and office supplies incident to performance of the obligations herein
assumed by Manager, except to the extent such services and materials are
provided for by Contract with a third party.
Manager shall maintain records for all supplies, tools and equipment
purchased hereunder by Manager for use in the management, operation and
maintenance of the Property. The same shall be delivered to and stored at the
Property and shall remain the property of the Owner and shall be used only in
connection with the Property.
3.18 Service Contracts. Manager shall be authorized to enter into contracts
for cleaning, maintaining, repairing or servicing the Property or any of the
constituent parts of the Property as provided in the Approved Property Budget
and as required pursuant to Sections 3.4(a) and 3.5 hereof.
Manager shall be required to obtain, to the extent possible, at least three
(3) competitive bids (and promptly advise Owner if Manager is unable to obtain
at least three (3) such bids) for any and all maintenance contracts which exceed
an annual cost of $10,000, which bids must be submitted to Owner for review,
comment and approval, and 2) enter into contracts that do not exceed one year in
length and are terminable without cause on thirty (30) days' notice and
immediately terminable for cause.
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All service contracts of a material nature shall:
(a) Be in the name of Manager as agent for Owner;
(b) Be assignable, at Owner's option, to Owner or Owner's nominee;
(c) Include a provision for cancellation thereof without cause by
Manager upon not more than thirty (30) days' written notice or if such a
provision cannot be obtained then cancelable upon the sale of the property
otherwise, Owner's prior written consent to enter into the service contract
shall be required; and
(d) Require that all contractors provide evidence of sufficient
insurance.
3.19 Waivers of Liens. Manager shall obtain all waivers of lien necessary
to keep the Property free and clear of all mechanics' and materialmen's; liens
in connection with any work performed on the Property. If Manager becomes aware
of the filing of any mechanics' or materialmen's lien against the Property, it
shall promptly advise Owner thereof, and shall take steps, as Owner may direct,
in order to cause such lien to be bonded or otherwise discharged of record. Any
costs incurred pursuant to this Section 3.19 shall be borne by the Owner.
3.20 Tax Payments. Subject to the requirements of the Loan Documents, if
any which require the escrow of real estate taxes, Manager shall obtain, verify
and pay bills for real estate and personal property taxes, improvement
assessments, and other like charges which are or may become liens against the
Property. Manager shall forward to Owner and Lender, after receipt thereof a
copy of tax bills not included in the Approved Property Budget such that Owner
may approve Manager's payment of such xxxx and, unless such tax bills are being
contested or are not included in the Approved Property Budget, or are being paid
directly by Lender or its servicer pursuant to the Loan Documents, if any.
Manager shall pay all such tax bills before any fine or penalty attaches or to
permit Owner to take advantage of any discounts. Such payments shall be borne by
the Property.
3.21 Mortgages. Manager shall pay debt service on any mortgages at
direction of Owner.
3.22 On-Site Office. Manager agrees to maintain a business office at the
Property in a location or locations designated by Owner. Any such office shall
be used solely as offices for personnel employed by Manager and working on the
Property, and shall be provided rent-free by Owner.
Provided Owner shall have given its prior written approval for Manager to
incur such costs and expenses, or to the extent included in the Approved
Property Budget, Manager shall be reimbursed for the cost of maintaining the
on-site office.
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Owner acknowledges that any Accounting/Property Management software Manager
introduces to the Property is owned by, or exclusively licensed to, Manager, and
any and all costs thereof shall be borne by Manager. Manager acknowledges that
any and all software Manager introduces to the Property other than the
Accounting/Property Management software, is owned, or exclusively licensed to,
Owner, and any and all costs therefor shall be done by Owner to the extent
included in the Approved Property Budget. All costs and expenses relating to
software or hardware upgrades or replacements shall also be borne by the
Property, to the extent included in the Approved Property Budget.
3.23 Marketing. Manager shall prepare promotional material to be used to
further rentals in accordance with the Approved Property Budget. Manager shall
not use Owner's name in any advertising or promotional material without Owner's
prior written approval in each instance.
Owner acknowledges and agrees that it is necessary and desirable for
Manager to coordinate all advertising, promotions and marketing affecting the
Property. Owner agrees that Manager shall have exclusive control over
announcements, advertising, articles, promotions and marketing affecting the
Property and Owner shall refer any requests for such items including leasing
inquiries to Manager. Manager shall implement Owner's desired marketing and
advertising programs.
Manager shall deliver to Owner an annual marketing plan simultaneous with
the submission of the Operating Budget and Capital Budget as defined in Section
7.3 hereof.
3.24 Advances. Manager shall not be obligated to make any advance to or for
the account of the Owner or to pay any sum except out of funds held or provided
as set forth in this Agreement, nor shall Manager be obliged to incur any
liability or obligation for the account of Owner without written assurance that
the necessary funds for the discharge thereof will be provided.
3.25 Excluded Services. Manager shall not be required to render any of the
following services under the terms of this Agreement:
(a) Services relating to any appeal of property taxes, except to
furnish all necessary information, retain special counsel and otherwise
cooperate in the tax appeal;
(b) Planning, developing, financing or supervising construction for
the Property (other than as provided in Sections 3.11 and 3.15 hereof) or
any additional land which may hereafter be added or become part of the
Property; and
(c) Services requiring a substantial expenditure of time in connection
with litigation other than suits for the collection of rent or the
enforcement of leases and the processing of insurance claims, whether or
not such litigation shall be instituted by Owner, by Tenants or by others
and unless suits are caused by the action of Manager.
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ARTICLE 4. Leasing Activities.
4.1 Leasing. hereby designates Manager as its exclusive broker for
leasing of space in the Property (subject to attached schedule of excluded
leases/deals) and agrees that it shall refer all inquiries for the leasing of
space to Manager and Manager shall negotiate all Leases, Expansion Space Leases,
Expansion Options, Relocation Leases, Renewal Leases, Renewal Options,
Modifications, Cancellations and (except Specialty License Agreements as defined
in this Article 4) for purposes of this Agreement other than Section 10.1 are,
collectively, referred to hereinafter as "Lease(s)". Any and all negotiating,
responses to inquiries about spaces, work on Leases, or prospective leases, may
be referred to as "Leasing Activities" throughout this Agreement. All Leasing
Activities are subject to the requirements of the Loan Documents, if any.
During the term of this Agreement, Owner agrees to refer to Manager all
offers and inquiries by prospective tenants, other Brokers or by Cooperating
Third Party Brokers as defined in Section 4.4 hereof, not affiliated with
Manager or by anyone making an inquiry for space in the Property, and Manager
agrees to diligently investigate and develop such offers or inquiries, to
canvas, solicit and otherwise employ reasonable commercial efforts and services
to lease space in the Property.
Manager shall make every effort to obtain desirable tenants for the
Property.
Manager shall, to the extent possible, procure financial information from
prospective tenants, investigate such information and use its best judgment in
the submission of prospective tenants to Owner for approval. Submission for
approval of prospective tenants shall be in the form of a completed lease
requisition, prospective tenant financial information, where available,
financial analysis of the proposed lease, and any required narrative necessary
to describe the prospective lease transaction.
Manager agrees to perform whatever reasonable service may be required in
connection with Leasing Activities including, but not limited to, preparing
monthly leasing status reports to be included in the Monthly Financial
Statements, and semi-annual leasing plans for the Property.
4.2 Execution of Leases. Manager shall prepare and submit to Owner for
approval, a lease requisition ("Lease Requisition") for all proposed
transactions. Upon receipt of Owner approval, Manager shall submit the approved
Lease Requisition to a law firm approved by Owner (the "Owner-Approved
Attorney") for preparation of the Lease.
All Leases for the Property are to be 1) prepared pursuant to the approved
Lease Requisition form completed by Manager and approved by Owner; and 2) in
accordance with the Leasing Guidelines set forth on Exhibit C and the Loan
Documents, if any. The Owner-Approved Attorney shall obtain the prospective
tenant's signature on five (5) original counterparts of the tenant-executed
lease and submit them to Manager. Manager shall send to Owner a copy of the
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partially executed leases for counter execution. Owner shall indicate its
signature on the lease and return the leases to Manager. Manager shall then
distribute the fully executed leases as follows: to Tenant; to Lender; to Owner;
to the on-site office; and shall retain the final counterpart in Manager's
corporate office.
Manager shall not execute any Lease or any renewal, extension, or
modification thereof (except for Specialty License Agreements) on behalf of
Owner.
Owner hereby authorizes Manager to conduct negotiations on requests for
modification of or toward resolution of disputes regarding any Lease. No Lease
modification, or breach may be executed without Owner's prior written consent.
Manager may not cancel or terminate or extend or otherwise change any Lease
for space on the Property.
All Leases and Lease modifications shall be in the Owner's name and
executed by Owner.
Any and all changes to the Leasing Guidelines shall be agreed to by Owner
in writing concurrently with the approval of the Approved Property Budget.
4.3 Lease Form. All Leases shall be on the form approved and agreed to by
Owner ("Lease Form") pursuant to Exhibit D if so attached, otherwise to a form
later approved by Owner, provided that Manager, with the consent of Owner, shall
have the right to make any modifications and additions to, or deletions from,
the Lease Form as are reasonably necessary to conclude the transaction and are
customary in the market, so long as such modifications, additions or deletions
do not significantly affect Owner's rights and obligations under the lease, do
not violate any of the provisions of the Loan Documents, if any, or adversely
affect Owner's property interests in the Property and conform to the Leasing
Guidelines. Any and all changes to the Lease Form shall be agreed to by Owner.
4.4 Brokers. Manager may, from time to time, recommend to Owner that
Manager be permitted to enter into brokerage agreements with cooperating
brokers. The term "Cooperating Third Party Broker" includes any person or firm
not in the employ of Manager who is engaged by Manager to perform Manager's
leasing activities at the Property with the prior written consent of Owner. A
"Brokerage Agreement" is any agreement arising out of such relationship between
Manager and Cooperating Third Party Broker.
From time to time Manager may also be required to enter into agreements
with tenant brokers. A "Tenant Representative Broker" is the exclusive
representative of a prospective tenant. Manager may enter into a "Tenant
Representative Broker Agreement" only if Owner has provided written approval of
such Tenant Representative Broker Agreement.
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ARTICLE 5. Indemnification.
5.1 Owner shall, except for Manager's willful malfeasance or gross
negligence, indemnity, defend and hold Manager, its affiliates and related
entities and its and their partners, employees, agents, officers, directors and
shareholders, (collectively, the "Manager's Indemnified Parties") harmless from
and against any and all claims, demands, causes of action, losses, damages,
fines, penalties, liabilities, costs and expenses, including attorneys' fees and
court costs, to which Manager may become liable or subject by reason of or
arising out of the performance of Manager's duties and activities within the
scope of this Agreement or arising from any action or activity on, or the
condition of, the Property.
To the extent of any such claims which are covered under Owner's insurance
policy or policies with respect to the Property, Owner releases Manager's
Indemnified Parties from all such claims, irrespective of the cause thereof.
5.2 Manager shall indemnify and hold Owner, Owners' members, its affiliates
and related entities and its and their partners, employees, servants, agent,
officers, members, directors, and shareholders (collectively, "Owner's
Indemnified Parties") harmless from and against any and all claims, actions,
losses, damages, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees and disbursements) resulting from (i) any
acts or omissions of Manager, its employees or agents which are outside the
scope of Manager's authority or responsibility hereunder, or (ii) except to the
extent actually covered by insurance required hereunder, the negligent or
tortious acts or omissions of agent, its employees and agents or the malfeasance
or misfeasance of agent, its employees or Managers.
5.3 Each party shall promptly notify the other of any claim asserted
against it for which it will seek indemnity. The indemnifying party shall have
the right to defend any such claim at its sole cost and expense.
5.4 The indemnities contained herein shall survive the termination or
expiration of this Agreement.
ARTICLE 6. Insurance.
6.1 Insurance. Manager shall, at Owner's request and expense, obtain and
keep in force, in amounts and at premium costs reviewed and approved by Owner,
all insurance, including insurance against physical damage (e.g., fire with
extended coverage endorsement, boiler and machinery, etc.) and broad form
commercial general liability coverage and such other coverages as may be
appropriate, insuring against liability for loss, damage or injury to property
or persons which might arise out of the occupancy, management, operation or
maintenance of the Property. Said insurance shall be in compliance with the Loan
Documents, if any. Manager and mortgage holder, if any, will be additional
insureds in all liability insurance maintained with respect to the Property.
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Manager, if any, agrees to (a) notify Owner and the insurance carrier
promptly after Manager receives actual notice of any loss, damage or injury, and
(b) take no action (such as admission of liability) which might bar Owner from
obtaining any protection afforded by any policy Owner may hold or which might
prejudice Owner in its defense to any claim, demand or suit within limits
prescribed by the policy or policies of insurance.
Manager shall aid and cooperate with Owner in every reasonable way with
respect to such insurance and any loss covered thereunder. Such insurance shall
be bid by Manager, with Owner's consent, who would act as a licensed broker to
sell insurance. Competitive bids shall be obtained by Manager from Owner's
recommended brokers. Any bid may be rejected by Owner in its sole and absolute
discretion. For any insurance policies obtained by Manager on behalf of the
Owner, Manager shall not be responsible for any cancellations, lapses, defaults,
or other impairments of insurance coverage, unless Manager is the sole and
exclusive cause thereof without any fault by Owner.
All insurance agreements shall include language such that the polices will
not lapse without thirty (30) days' notice to Owner, Manager and Lender.
Manager shall cooperate with the insurance carriers in the handling,
prosecution and defense of any insurance issues, under all such coverage. To the
extent directed by Owner in writing, Manager will procure the periodic insurance
appraisals which may be required by any lease in force, at Owner's cost, and to
make periodic reports to Owner not less frequently than once per calendar year
of the kinds and amounts of insurance coverage in force, the expiration dates
thereof, the premium cost thereof, and the basis upon which the amount of
coverages was determined.
6.2 Additional Insurance. Manager shall furnish a certificate of
comprehensive crime insurance in an amount of not less than $2,000,000. The
certificate shall provide that Owner and Lender will be given at least thirty
(30) days' prior written notice of cancellation or any material change in the
policy. In addition, Manager shall maintain Workers' Compensation insurance in
the statutory amount (or participate in the appropriate state fund if such
insurance is not available or allowed), employer's liability insurance in the
amount of $2,000,000 (or participate in the appropriate state fund if such
insurance is not available or allowed), and broad form commercial general
liability insurance (including contractual liability and personal injury
coverages) in the amount of not less than $2,000,000 combined single limit.
Manager shall maintain commercial excess liability of $20,000,000.
The liability insurance policy shall name Manager as the named insured and
Owner as an additional insured. Such broad form commercial general liability
policy shall provide that it cannot be terminated prior to thirty (30) days
following written notice to Owner of such termination. Owner shall reimburse
Manager for Manager's cost of such broad form commercial general liability
insurance, or for any and all coverages that Manager obtains for its own
account. All insurance policies shall be in form, amounts and with such
companies as are acceptable to Owner,
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provided, however, that in no event shall any insurer have a Best's Insurance
Rating of less than "A+:XI".
Manager shall carry automobile liability insurance in the amount of
$1,OOO,OOO.
6.3 Contractor's Insurance. Manager shall require that all contractors
brought onto the Property have insurance coverage, at the contractor's
expense, in the following amounts:
(a) Workers' Compensation - statutory amount;
(b) Broad Form Commercial General Liability (naming Owner and Manager
as additional insureds) $1,OOO,OOO per occurrence Combined Single Limit;
$2,000,000 aggregate (i.e., such insurance shall be broad form and shall
include contractual liability, personal injury protection and completed
operations coverage);
(c) Auto Liability (if deemed appropriate by Manager) - $1,OOO,OOO
minimum; and
(d) Property Insurance coverage for tools and equipment brought onto
and/or used on the Property by any contractor at an amount equal to the
replacement cost of all such tools and equipment.
Manager shall obtain and keep on file a Certificate of Insurance which
shows that the contractor is so insured.
ARTICLE 7. Financial Reporting and Recordkeeping.
7.1 Books and Records. Manager shall maintain, at its principal office,
separate books in connection with its management and operation of the Property
(the "Books and Records"). The Books and Records shall be kept in accordance
with generally accepted accounting principles on an accrual and cash basis. The
maintenance of the Property's Books and Records shall be at Manager's sole
expense except for those direct on site bookkeeping personnel costs. Owner shall
have the right and privilege of examining the Books and Records at Manager's
principal office at any and all reasonable times.
7.2 Account Classification. Manager shall use the chart of accounts for the
Property provided by Owner, as set forth in Exhibit G, which chart may be
amended by Owner from time to time by written notice to Manager.
7.3 Financial Reports.
(a) Monthly Financial Reports. Manager shall furnish summary and
detail
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reports, in form acceptable to Owner and Lender, and in compliance with the Loan
Documents, if any, of all transactions occurring from the first day of the
prescribed monthly accounting period to the last day of the prescribed monthly
accounting period. These reports are to be delivered to Owner or Owner's agent
(reasonably promptly after the end of the above described accounting period but
no later than the 10th of the next month and should indicate all collections,
delinquencies, uncollectible items, and other matters during the prescribed
monthly accounting period. Also by this date, Manager will submit an accrual
basis journal entry summarizing monthly activity via electronic medium to
Owner's designee, either utilizing MRI for Windows accounting system (using the
distributive processing module), Microsoft Excel (1997), or such other program
as shall thereafter be designated by written notice to Manager by Owner.
Information will be based upon the attached chart of accounts as set forth in
Exhibit G, which is subject to modification pursuant to Section 7.2 hereof.
These reports shall contain an executive summary highlighting operational
issues, an income statement which shall include both current month and
year-to-date amounts for the following: actual revenues and expenses, budget
revenues and expenses (variances between the actual expenses and the Approved
Property Budget), and in the second and subsequent years, prior year actual
revenue and expense amounts, plus a detailed explanation of the variances, trial
balance, general ledger, a schedule of capital expenditures, Tenant sales
reports, an aged Tenant receivable list with comments, a current rent roll,
including specialty leasing tenants, a bank reconciliation, a computation of
Manager's management fee, collectively the "Monthly Financial Reports," and any
other information reasonably required by Owner or to comply with the Loan
Documents, if any. Except as otherwise provided herein, Manager shall not be
responsible for the preparation of any form, reports, income or other tax
returns required to be filed or prepared on behalf of Owner in connection with
the Property by any local, state, federal or other governmental authority other
than local personal property filings. Manager shall timely file Form 1099's, as
required, for payments made by Manager on behalf of the Owner.
Upon Owner's reasonable request, Manager shall also furnish such further
accounting information normally prepared and used in the operation of similar
properties. Manager shall furnish and provide to Owner and Lender all of the
financial reports required under the Loan Documents, if any (the terms of which
have been incorporated in this Section 7.3).
Notwithstanding any provision herein providing to the contrary, subject to
written modification from time to time hereafter by Owner, Owner specifically
requires that:
(i) Manager's monthly reports be on the accrual basis of
accounting and shall include an accrual for percentage rent (in
accordance with EITF 98-9) and tenant xxxx backs,
(ii) Manager shall request that a third party accounting firm
provide an annual report relating to the receipt and payment of
Merchant Association dues and expenses,
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(iii) Manager shall account for and amortize leasing
commissions, fixed asset additions and tenant installations in
accordance with generally accepted accounting principles, and
(iv) Manager shall provide a calculation of straight line rent
in accordance with SFAS 13;
(v) Manager shall maintain an Argus Financial Model of the
Property and update it monthly. The Argus Model shall be provided by
Owner.
(b) Annual Budgets. Not later than ninety (90) days prior to the end
of each calendar year, except in the first year of this Agreement if entered
into later than ninety (90) days prior to the end of the calendar year, Manager
shall prepare and submit to Owner, (i) a proposed operating budget indicating
the estimated receipts, expenditures, escrow deposits and reserves for the next
succeeding fiscal year on a monthly basis, and the expected sources of funds,
together with the estimated net cash flow from the Property for the next
succeeding fiscal year (the "Operating Budget"), and (ii) a capital budget,
together with supporting data and assumptions used, in respect of Owner's
Property setting forth a statement of proposed capital expenditures to be made
by Manager in the succeeding fiscal year, including cost and timing estimates
therefor (the "Capital Budget"). The Operating Budget and Capital Budget shall
be subject to the approval of Owner and Lender (such budgets, as so approved,
together with any modifications thereto approved by Owner and Lender, shall be
collectively referred to herein as the "Approved Property Budget"). Manager
shall use reasonable efforts to implement the Approved Property Budget and shall
be authorized, without the need for further approval by Owner, to make the
expenditures and incur the obligations provided for in the Approved Property
Budget. Until such time as an Owner and Lender approve the Operating Budget and
the Capital Budget, Manager shall continue to follow the most recent Approved
Property Budget and shall be authorized to make expenditures in accordance
therewith. If this Agreement is entered into at a date later than ninety (90)
days prior to the end of the calendar year, then the Operating Budget shall be
prepared on a timetable mutually agreed to by Owner, Lender and Manager.
7.4 Supporting Documentation. As additional support to the Monthly
Financial Reports, Manager shall keep and make available to Owner (at the place
where Books and Records are kept) the following:
(a) All bank statements and bank deposit slips;
(b) Detailed cash receipts and disbursement records;
(c) Invoices for capital expenditures and non-recurring items;
(d) Summaries of adjusting journal entries; and
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(e) Supporting documentation for payroll, payroll taxes and employee
benefits.
7.5 Accounting Principles. All financial statements and reports required
by Owner will be prepared on the accrual and cash basis method of accounting.
ARTICLE 8. Owner's Right to Audit. Owner reserves the right for Owner's
employees, and others appointed by Owner, to conduct examinations, during
regular business hours and following reasonable notice to Manager, of the Books
and Records maintained for Owner. Owner also reserves the right to perform any
and all additional audit tests relating to Manager's activities either at the
Property or at any office of the Manager during regular business hours and
following reasonable notice to Manager; provided such audit tests are related to
those activities performed by Manager for Owner. Manager will provide reasonable
professional assistance to Owner's auditors or to any independent auditors when
requested to do so by Owner in writing.
Should Owner's employees or agents discover errors in the record keeping,
Manager shall correct such discrepancies either upon discovery or within a
reasonable period of time. Manager shall inform Owner in writing of the action
taken to correct such audit discrepancies. Any and all such audits conducted by
Owner or its agents will be at the sole expense of Owner unless such audit
discloses discrepancies in excess of ten percent (10%) of the amount which
should have correctly been indicated in the records for any one item or in
excess of five (5%) percent of the amount which should have correctly been
indicated in the records for an aggregate of items in any one audit, in which
case the full reasonable cost of such audit should be the responsibility of
Manager.
ARTICLE 9. Bank Accounts.
9.1 Operating Account. Owner shall approve the bank accounts used for the
operation of the Property and Manager shall cause to have deposited all rents
and other funds collected from the operation of the Property, including any and
all advance rents, into the Clearing Account, and such funds, in turn, shall be
wired to the Deposit Account. An Operating Account shall be established by the
Owner, which funds shall be advanced from the Deposit Account. Such Operating
Account subject to conformance with Loan Documents, if any, shall be in the name
of:
Landau & Xxxxxx of, __________ Inc.
Managing Agent for Park Plaza Mall
Operating Account #__________
Marketing/promotion accounts shall be established for the receipt and
disbursement of marketing funds, and shall be named as follows:
Landau & Xxxxxx of, _______ Inc.
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Managing Agent for Park Plaza Mall
Promotion Fund Account #_________
Each of these accounts is located at American National Bank and Trust
Company 000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000.
9.2 Security Deposit Account. Not Used.
9.3 Change of Banks. Owner, may direct Manager from time to time to
change a depository bank or the depository arrangements.
ARTICLE 10. Compensation.
10.1 Compensation. Each prescribed monthly accounting period Manager
shall receive remuneration for its services in managing the Property in
accordance with the terms of this Agreement.
(a) Amount and Payment. As compensation for the performance of its
obligations under this Agreement, Owner shall pay Manager:
(i) A monthly fee in an amount equal to three percent (3%) of
the Gross Rentals, including Specialty Leasing Income, as herein
defined, (provided the on-site Specialty Leasing Coordinator's (as
herein defined) compensation is paid by Owner) from the operation of
the Property for the month with respect to which such fee shall be
payable (the "Management Fee");
(ii) Lease Commissions as defined in Exhibit B shall be paid
only pursuant to a written certification provided by Owner to Manager
that all the prerequisites to the payment of a Lease Commission as
set forth in this agreement are satisfied;
(iii) As set forth in this Agreement, if the on-site Specialty
Leasing Coordinator's compensation is not paid by Owner, then Manager
shall be paid by Owner, a Specialty Leasing License Agreement fee as
defined in Section 10.1(c). Management Fee and Specialty Leasing Fee
shall be payable monthly; and
(iv) A fee for the service of tenant alteration/improvement
plans ("Tenant Coordination Work"), which shall be at the rate of
$75 per hour not to exceed $1,500 per lease unless otherwise approved
by Owner.
(b) Gross Rentals. For purposes of this Section 10.1, the "Gross
Rentals" from the operation of the Property for any month shall include all sums
which Owner actually receives under Leases for such month (including Specialty
Leasing Income, as hereinafter defined)
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including without limitation, as fixed minimum rent (as the same may be
increased under any Lease by any consumer price index or other escalation),
percentage rent, percentage rent in lieu of fixed minimum rent, late rental
payment penalties under Leases, payments resulting from tax, common area
maintenance, insurance, any other expense escalation or pass-through clause in
leases, amounts recovered on claims made against Tenants for defaults under
Leases, Termination Fees (as defined below), and miscellaneous income; but
specifically excluding: security deposits, the proceeds of property sales,
proceeds of insurance claims, cancellation fees, payments for physical
installations, tenant improvements or "finish work", interest income and
proceeds derived from an extraordinary or non-recurring event (including the
proceeds of asset sales, including, without limitation, the sale of out parcels,
or any real property, or litigation). Any fees payable by Tenants upon exercise
of a "kick-out" option (as those items are provided for in the Lease) and that
are payable to Owner in addition to all rentals otherwise due and payable
pursuant to the Lease shall be deemed "Termination Fees", provided the fees do
not represent unamortized tenant or landlord work or allowances, brokerage fees
or other installation costs.
If this agreement is terminated pursuant to Article 2, other than on
account of Manager's default, then Gross Rentals from the operation of the
Property shall include the charges described in the preceding paragraph which
have been incurred and are past due and percentage rents which are due for the
period prior to the date of termination of this Agreement, as and only to the
extent such charges are subsequently collected by Owner within ninety (90) days
of being due. In the event there is an adjustment under a Lease of any item of
rent which was theretofore included (or, if applicable, excluded) from Gross
Rentals from the operation of the Property, provided this Agreement was not
terminated on account of Manager's default, Owner and Manager shall make an
appropriate recalculation of the fee payable pursuant to Section 10.1(a) and, if
there shall have been an overpayment, Manager shall promptly return the amount
thereof to Owner, and if there shall have been an underpayment, the amount
thereof shall be paid in accordance with Section 10.1 (a)(i). The obligations of
Owner and Manager to make adjustments and payments described in the immediately
preceding sentence shall survive any expiration or termination of this
Agreement.
(c) Specialty Leasing. Leases for tenants leasing space at the
Property under any type of license agreement for a short term (i.e., less than
twelve (12) months) or on a seasonal or special purpose basis (e.g., stores
operating during the holiday season specializing in Christmas ornaments) are
"Specialty License Agreements". "Specialty Leasing Income" shall be that income
received from tenants operating under a Specialty License Agreement. If at
Owner's option the Specialty Leasing Coordinator's (that person who performs
specialty leasing functions) compensation is paid by Manager, then Owner shall
compensate Manager at a rate of ten percent (10%) of the revenue collected or
owed pursuant to Section 10.1 (b) from retail merchandising unit, kiosk, push
cart or in-line Specialty Leasing Tenants, (the "Specialty Leasing Fee"), and
shall not compensate Manager at the 3% rate in Section 10.1(a)(i). Specialty
Leasing Income shall be reported net of compensation to Manager and net of
common area and utility charges.
10.2 Compensation for Optional Services. In the event Manager is engaged
to
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perform the services set forth on Exhibit F, the compensation for said services
shall be negotiated on a case-by-case basis, notwithstanding the fees if any
referenced in Exhibit F.
10.3 Intentionally Omitted.
10.4 Reimbursements. Owner shall pay Manager monthly upon presentation of
invoice for the following costs and expenses incurred by Manager in connection
with the performance of Manager's obligations hereunder, unless pursuant to the
Approved Property Budget. Notwithstanding anything to the contrary in this
Section 10.4, all invoices for costs and expenses which are not approved or
denied by Owner within five (5) business days shall be deemed approved by Owner
and Manager shall immediately be paid for those invoices.
(a) All compensation (including payroll expenses, fringe benefits,
and profit sharing and 401(k) contribution, if any) paid to all employees of
Manager located at the Property, including employees of any company affiliated
with Manager, either on site or offsite, but only to the extent included in the
Approved Property Budget or otherwise pre-approved in writing by Owner;
(b) Owner's share of advertising and promotional expenses
(including, a pro-rata share of the ICSC Spring Convention, not to exceed
$2,500.00 to the extent included in the Approved Property Budget and directly
attributable to the Property) and merchants' association and/or promotion fund
dues to the extent included in the Approved Property Budget;
(c) Costs incurred in maintaining and operating the Property,
including, without limitation, costs incurred in maintaining Manager's on-site
management and leasing office but only to the extent included in the Approved
Property Budget;
(d) All travel and business expenses of employees located at the
Property but only to the extent included in the Approved Property Budget and
excluding costs to travel to work from home and vice versa.
(e) All relocation expense of employees who relocate to the Property
but only if approved by Owner;
(f) All reasonable attorneys' fees and disbursements in connection
with Manager's obligations hereunder but only to the extent included in the
Approved Property Budget;
(g) All reasonable fees and payments made to third parties,
including, but not limited to consultant and brokerage fees but only to the
extent included in the Approved Property Budget; and
(h) All other costs and expenses not otherwise provided for herein
which are
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approved by Owner in writing.
10.5 Costs and Expenses not to be Reimbursed. Notwithstanding anything to
the contrary contained in this Agreement, the following costs and expense of
Manager shall be borne solely by Manager and shall not be reimbursed by Owner:
(a) Salaries and wages, payroll taxes and other benefits of
Manager's employees, other than on-site employees and to the extent provided
herein; and
(b) Overhead and general administrative expenses of any kind, other
than to the extent provided herein; and
(c) The cost of maintaining the books, accounts and records for the
Property and the cost of preparing the budgets and reports required under
this Agreement other than to the extent provided herein; and
(d) Entertainment and travel expenses of Manager, except as provided
herein to the contrary, unless otherwise approved pursuant to the Approved
Property Budget; and
(e) Expenses of Manager incurred by reason of, arising out of or in
connection with any negligent act or omission or any willful misconduct of
Manager or its representatives or employees, or any act taken by Manager or its
representatives or employees outside the scope of the authority granted
hereunder or in breach of Manager's obligations hereunder, or with respect to
which Manager is obligated to indemnity Owner.
10.6 Payment of Compensation. Except as provided to the contrary herein,
Manager may withdraw funds from the Operating Account for its Compensation and
reimbursement of any and all Property expenses, and other amounts owed hereunder
when such compensation, reimbursement and other amounts are due for payment, to
the extent the same is not in conflict with the terms of the Loan Documents, if
any.
ARTICLE 11 Cooperation. Should any claim, demand, suit or any other legal
proceedings be made or instituted by any person against Owner, which arise out
of any of the matters relating to this Agreement or out of any matters relating
to Manager's other obligations to Owner or to third parties, Manager shall give
Owner, upon Owner's request at no additional cost to Owner, all pertinent
information and reasonable information in the defense or other disposition
thereof.
Manager shall notify Owner immediately given the circumstances of any fire,
material accident or other casualty, condemnation proceedings, rezoning or other
governmental order, lawsuit or threat thereof involving the Property; and
violations relative to the leasing, use, repair and maintenance of the Property
under governmental laws, rules, regulations or ordinances.
Owner shall similarly cooperate with Manager should any claim, demand, suit
or other
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legal proceedings be made or instituted by any person against Manager which
arise out of any of the matters relating to this Agreement.
ARTICLE 12. Insufficient Gross Income.
12.1 Priorities. If at any time the cash flow from the Property shall not
be sufficient to pay the expenses, invoices, bills, charges etc., that may be
incurred with respect to such Property, or if such cash flow is insufficient to
pay the combined sum of all these items, then, subject to the requirements of
the Loan Documents, if any, payment of such items shall be paid in the following
order of priority:
(a) First, all mortgage payments, ground lease payments, property
tax payments insurance premiums, and utility bills.
(b) Second, expenses, invoices, bills and charges, if any, incurred
by Manager for Manager's services provided to Owner including, without
limitation, all payroll related reimbursements and Manager's compensation.
(c) Third, expenses, invoices, bills and charges of third parties.
12.2 Statement of Unpaid Items. Manager shall submit to Owner, if
necessary, a statement of all remaining unpaid bills in order to determine the
appropriate action to be taken.
12.3 Segregation of Accounts. Intentionally omitted.
ARTICLE 13. Sale of a Property - Cooperation with Sales Broker. Manager agrees
to cooperate with and assist Owner in any attempt(s) by Owner to sell or
otherwise transfer any or all of its interest in the Property, or to obtain
financing in connection with its ownership of the Property, without such
cooperation giving rise to any claim by Manager for a commission or any other
additional compensation. Such cooperation shall include, responses to reasonable
requests by Owner, such as answering prospective purchasers' and lenders'
questions about the Tenants, the Leases or any other matter involving the
Property; preparing a list of all personal property used at the Property or in
its operation; and notifying Tenants of any such transfer or financing.
Manager shall cooperate with Owner in the preparation, distribution and
receipt of tenant estoppels and subordination and non-disturbance agreements.
ARTICLE 14. Timely Performance by Manager and Owner: Approvals by Owner. Owner
and Manager shall each perform all of their respective obligations under this
Agreement in a proper, prompt and timely manner. Each shall furnish the other
with such information and assistance as the other may from time to time
reasonably request in order to perform its responsibilities hereunder. Owner and
Manager each shall take all such actions as the other may from time to time
-27-
reasonably request and otherwise cooperate with the other so as to avoid or
minimize any delay or impairment of either party's performance of its
obligations under this Agreement.
Owner and Manager shall make every effort to timely respond to any request
for approval of any and all necessary issues in order to effectively manage the
Property.
ARTICLE 15. Notices. All notices, demands, consents and reports provided for in
this Agreement shall be in writing, unless otherwise noted in this Agreement,
and shall be given to the Owner or Manager at the address set forth below or at
such address as they individually may specify thereafter in writing:
Owner: First Union Real Estate Investments, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxx
w/copies to: Xxxxxxxx, Weprin & Ustin, LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Manager: Landau & Xxxxxx
000 X. Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxxxxx
w/copy to: Sonnenschein, Nath & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx
Such notice or other communication may be mailed by United States
registered or certified mail, return receipt requested, postage prepaid and may
be deposited in a United States Post Office or a depository for the receipt of
mail regularly maintained by the post office. Such notices, demands, consents
and reports may also be delivered by hand, by recognized overnight courier
service or by any other method or means permitted by law. For purposes of this
Agreement, notices will be deemed to have been given upon receipt whether given
by personal delivery, overnight service or the United States mail as provided
above.
ARTICLE 16. General Provisions.
16.1 Assignment. This Agreement and any and all rights hereunder, shall be
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assignable in whole or in part by Owner; however, Manager shall have no right to
assign this Agreement or any rights hereunder unless assignee is the result of a
sale or merger and the new company is controlled or majority owned by Xxxxxxx
X'Xxxxx and Xxxxx Xxxxxxxxxxx.
16.2 Production of Documents. Manager shall, upon Owner's written request
and with reasonable notice, from time to time, submit copies of any lease,
contract, xxxx, license, agreement or any other document relating to the
Property or to this Agreement to the Owner when requested, but shall always
submit copies of fully executed leases to Owner, unless otherwise directed.
16.3 Consents and Approvals. Owner's consents or approvals may be given
only by representatives of Owner from time to time designated in writing by
Owner's representatives located at the address provided in and pursuant to
Article 15.
16.4 Pronouns. The pronouns used in this Agreement referring to the
Manager or Owner shall be understood and construed to apply whether the Manager
be an individual, copartnership, corporation or an individual or individuals
doing business under a firm name or trade name. Any references in this Agreement
to any one gender, masculine, feminine or neuter, includes the other two, and
the singular includes the plural, and vice versa, unless the context otherwise
requires.
16.5 Amendments. Except as otherwise herein provided, any and all
amendments, additions or deletions to this Agreement shall be null and void
unless approved by the parties in writing.
16.6 Headings. All headings herein are inserted only for convenience and
ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement.
16.7 Complete Agreement. This Agreement and this Exhibits, attached hereto
and made a part hereof, constitute the entire Agreement between the parties with
respect to the activities noted herein and supersedes and takes the place of any
and all previous agreements entered into between the parties hereto relating to
the Property covered by this Agreement.
16.8 Severability. Each provision of this Agreement is severable. If any
term or provision shall be determined by a court of competent jurisdiction to be
illegal or invalid for any reason whatsoever, such provision shall be severed
from and not affect the validity of this Agreement.
16.9 Intentionally Omitted.
-29-
16.10 Waivers.
(a) No consent or waiver, express or implied, by either party of
any breach or default by the other party in the performance of its obligations
hereunder shall be valid unless in writing. No such consent or waiver shall be
deemed or construed to be a consent or waiver to or of any other breach or
default of the same or any other obligations of such party hereunder.
(b) Failure on the part of either party to complain of any act or
failure to act of the other party or to declare the other party in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such party of its rights hereunder.
(c) The granting of any consent or approval in any one instance by
or on behalf of Owner or Manager shall not be construed to waive or limit the
need for such consent in any other or subsequent instance.
16.11 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be entirely performed within such State.
16.12 Successors.
(a) Subject to the restrictions on transfer contained herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
(b) References to "Owner," "Lender" and " Manager" hereunder shall
be deemed to be references to the parties hereto and their respective successors
and assigns.
16.13 No Joint Venture. Nothing contained in this Agreement shall be
construed as making Owner and Manager partners or a joint venture or as making
either party liable for the debts or obligations of the other party, except as
expressly provided herein or in any other agreement executed by and between
Owner and Manager.
16.14 Survival. The provisions of Article 5 of this Agreement shall survive
the expiration or termination of the term of this Agreement.
16.15 Intentionally Omitted.
16.16 Miscellaneous. This Agreement may be executed in several
counterparts, each
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of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, Owner and Manager have executed this Agreement as of
the day and year first above written.
First Union Real Estate Investments, Inc. Landau & Xxxxxx of Arkansas, Inc.,
an Ohio Business Trust an Arkansas corporation
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X'Xxxxx
------------------------------------- ------------------------------
Name: Xxxx Xxxxxx Name: Xxxxxxx X'Xxxxx
Title: Executive Vice President Title: President
-31-
EXHIBIT A
PROPERTY DESCRIPTION
EXHIBIT "A"
Tract 1: (Reserve Tract "A"-Fee simple)
A part of the NE 1/4 NE 1/4, Section 1, Township 1 North, Range 13 West, Pulaski
County, Arkansas, more particularly described as follows: From the Southeast
corner of the said NE 1/4 NE 1/4; run thence North 88 degrees 38 minutes 23
seconds West and along the South line of the said NE 1/4 NE 1/4 and the
centerline of West Xxxxxxx Xxxxxx (xx 00 foot width) for 651.67 feet; thence
North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of
way line of West Xxxxxxx Xxxxxx; thence North 88 degrees 38 minutes 23 seconds
West and along the North right of way line of West Markham Street for 264.08
feet; thence North 01 degree 21 minutes 37 seconds East for 42.00 feet; thence
North 88 degrees 38 minutes 23 seconds West for 250.64 feet to the point of
beginning; thence North 00 degrees 29 minutes East for 168.54 feet; thence North
88 degrees 37 minutes 06 seconds West for 150.11 feet to the East right of way
line XxXxxxxx Street (of 30.0 foot width) and a point 15.0 feet East of the West
lines of the NE 1/4 NE 1/4; thence South 00 degrees 29 minutes West and along
the East right of way line of XxXxxxxx Street and parallel with the West line of
the NE 1/4 NE 1/4 for 210.60 feet to the North right of way line of West Xxxxxxx
Xxxxxx and a point 30.0 feet North of the South line of the NE 1/4 NE 1/4;
thence South 88 degrees 38 minutes 23 seconds East and along the North right of
way line of West Markham Street and parallel with the South line of the NE 1/4
NE 1/4 for 150.11 feet; thence North 00 degrees 29 minutes East for 42.0 feet to
the point of beginning, containing 0.7256 acres, more or less. Now platted as
part of Tract A, Park Plaza Addition, Little Rock, Pulaski County, Arkansas, as
recorded in Plat Book C, Page 519, records of Pulaski County, Arkansas. LESS AND
EXCEPT Part of Tract A, Park Plaza Addition in the City of Little Rock, Pulaski
County, Arkansas, as recorded in Plat Book C at Page 519 being more particularly
described as follows:
BEGINNING at the Southwest corner of the said Tract A, Park Plaza Addition;
thence North 00 degrees 29 minutes 00 seconds East along the existing East right
of way line of XxXxxxxx Street 210.6 feet; thence South 88 degrees 40 minutes 09
seconds East along the North line of said Tract A, 18.14 feet; thence along the
proposed East right of way line of XxXxxxxx Street the following three courses
and distances: 1) South 05 degrees 10 minutes 05 seconds East 67.00 feet 2)
South 00 degrees 10 minutes 54 seconds West 124.18 feet; and 3) South 44 degrees
29 minutes 5l seconds East 28.43 feet to the North right-of-way line of West
Markham Street; thence along said North right-of-way line North 88 degrees 43
minutes 26 seconds West 45.49 feet to the point of beginning.
Tract 2: (Reserve Tract "B"-Fee simple)
part of the NE 1/4 NE 1/4, Section 1, Township 1 North, Range 13 West, Pulaski
County, Arkansas, more particularly described as follows: From the Southeast
corner of the said NE 1/4 NE 1/4; run thence North 88 degrees 38 minutes 23
seconds West and along the South line of the said NE 1/4 NE 1/4 and the
centerline of West Markham Street (of 60.0 foot width) for 651.67 feet; thence
North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of
way line of West Xxxxxxx Xxxxxx; thence North 88 degrees 38 minutes 23 seconds
West and along the North right of way line of West Markham
Street for 264.08 feet to the point of beginning; thence North 01 degrees 21
minutes 37 seconds East for 42.00 feet; thence North 88 degrees 38 minutes 23
seconds West for 250.64 feet; thence South 00 degrees 29 minutes West for 42.00
feet to the North right of way line of West Xxxxxxx Xxxxxx; thence South 88
degrees 38 minutes 23 seconds East and along the North right of way line of West
Markham Street and parallel with South line of the NE 1/4 NE 1/4 for 250.00
feet, more or less to the point of beginning,. containing 0.2413 acres, more or
less now platted as part of Tract D of Park Plaza Addition, Little Rock,
Pulaski County, Arkansas, as recorded in Plat recorded C-519, records of Pulaski
County, Arkansas.
Tract 3: (Reserve Tract "C"-Fee simple)
Being Xxxx 0, 0, 0 xxx 0, Xxxxx Xxxxxxx Addition to the City of Little Rock,
Pulaski County, Arkansas, more particularly described as follows: from the
Southeast corner of the said NE 1/4 NE 1/4 run thence North 88 degrees 38
minutes 23 seconds West and along the South line of the said NE 1/4 NE 1/4 and
the centerline of West Markham Street (of 60.0 foot width) for 651.67 feet;
thence North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North
right of way line of West Xxxxxxx Xxxxxx; thence North 88 degrees 38 minutes 23
seconds West and along the North right of way line of West Markham Street for
264.08 feet; thence North 01 degrees 21 minutes 37 seconds East for 42.0 feet;
thence North 88 degrees 38 minutes 23 seconds West for 250.64 feet; thence North
00 degrees 29 minutes East for 168.54 feet; thence North 88 degrees 37 minutes
06 seconds West for 150.11 feet to the East right of way line of XxXxxxxx Street
(of 30.0 foot width) and a point 15.0 feet East of the West line of the NE 1/4
NE 1/4; thence North 00 degrees 29 minutes East and along the East right of way
line of XxXxxxxx Street and parallel with the West line of the NE 1/4 NE 1/4
for 556.51 feet to the Northwest corner of Xxx 00, Xxxxx Xxxxxxx Addition to the
City of Little Rock (as recorded in Plat Book 1, Page 62) and the Southwest
corner of an alley (of 20 foot width) running in an East-West direction; thence
North 00 degrees 29 minutes East and along the East right of way line of
XxXxxxxx Street and parallel with the West line of the NE 1/4 NE 1/4 for 20.0
feet to the Southwest corner of Xxx 0, Xxxxx Xxxxxxx Addition to the City of
Little Rock (recorded in Plat Book 1, Page 62) and the point of beginning;
thence continue North 00 degrees 29 minutes East and along the West line of said
Lot 1 and parallel with the West line of the NE 1/4 NE 1/4 for 140.0 feet to the
Northwest corner of said Lot 1 and a point on the South right of way line of "C"
street (of varying width)); thence South 88 degrees 50 minutes 28 seconds East
and along the North line of Xxxx 0, 0, 0 xxx 0, Xxxxx Xxxxxxx Addition to the
City of Little Rock and the South right of way line of "C" Street 196.0 feet to
the common North corner of Xxxx 0 xxx 0, Xxxxx Xxxxxxx Addition; thence South 00
degrees 29 minutes West and along the common line of Lots 4 and 5, Xxxxx Xxxxxxx
Addition to the City of Little Rock, for 140.0 feet to the common South corner
of said Lots 4 and 5 and a point on the North line of the previously mentioned
East-West alley; thence North 88 degrees 50 minutes 28 seconds West and along
the south line of Xxxx 0, 0, 0 xxx 0, Xxxxx Xxxxxxx Addition to the City of
Little Rock and the North line of previously mentioned East-West alley for 196.0
feet to the point of beginning, containing 0.6299 acres, more or less, now
platted as Tract C of Park Plaza Addition, Little Rock, Pulaski County,
Arkansas, as recorded in Plat Record C-519, records of Pulaski County, Arkansas.
Tract 4: (Developer Tract-Fee Simple)
A part of the NE 1/4 NE 1/4, Section 1, Township 1 North, Range 13 West, which
included "X" Xxxxxx and Xxxxxx Street, closed by City of Little Rock Ordinance
No. 11,439 and No. 11,061, and parts of Xxxx 00, 00 xxx 00, Xxxxx Xxxxxxx
Addition to the City of Little Rock, all being in Pulaski County, Arkansas, more
particularly described as fo1lows: From the Southeast corner xxx the said NE 1/4
NE 1/4 run thence North 88 degrees 38 minutes 23 seconds West and along the
South line of the said NE 1/ NE 1/4 and the centerline of West Xxxxxxx Xxxxxx
(xx 00 foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37
seconds East for 30.0 feet to the North right of way line of West Xxxxxxx Xxxxxx
and the point of beginning; said point being the Southeast corner of the Xxxxxxx
Department Stores, Inc. tract; thence North 01 degrees 21 minutes 37 seconds
East for 194.81 feet; thence North 88 degrees 38 minutes 23 seconds West for
160.36 feet to a point which is in line with the East wall of a two story brick
building occupied by Xxxxxxx Department Stores, Inc.; thence North 01 degrees 24
minutes 36 seconds East and along the East wall and East wall projected North
for 594.02 feet to the North line of an East-West alley and a point on the South
line of Xxx 00, Xxxxx Xxxxxxx Addition to the City of Little Rock; thence South
88 degrees 50 minutes 28 seconds East and along the South line of Xxxx 00, 00
xxx 00, Xxxxx Xxxxxxx Addition to the City of Little Rock and the North line of
the East-West alley for 114.11 feet to the Southeast corner of said Lot 13;
thence North 00 degrees 29 minutes East and along the East line of said Lot 13
and the West right of way line of Xxxxxx Street for 26.12 feet to a point;
thence South 89 degrees 03 minutes 32 seconds East for 637.63 feet to the West
right of way line of University Avenue (of 80 foot width) and 40.0 feet West of
the East line of the NE l/4 NE l/4; thence South and along the West right of way
line of University Avenue and parallel with the East line of the NE 1/4 NE 1/4
for 55.00 feet; thence North 89 degrees 03 minutes 32 seconds West for 200.00
feet; thence South 01 degrees 21 minutes 37 seconds West for 200.00 feet; thence
North 88 degrees 38 minutes 23 seconds West for 59.44 feet; thence South 01
degrees 26 minutes 04 seconds West for 368.75 feet; thence North 88 degrees 38
minutes 23 seconds West for 69.86 feet; thence South 01 degrees 21 minutes 37
seconds West for 150.00 feet; thence South 88 degrees 38 minutes 23 seconds East
for 143.81 feet; thence North 01 degrees 21 minutes 37 seconds East for 129.01
feet; thence South 88 degrees 38 minutes 23 seconds East for 200.00 feet to the
West right of way line of University Avenue and a point 40.0 feet West of the
East line of the NE 1/4 NE 1/4; thence South and along the West right of way
line of University Avenue and parallel with the East line of the NE 1/4 NE 1/4
for 122.36 feet to the P.C. of a curve to the right whose radius is 29.36 feet
and whose delta angle is 91 degrees 03 minutes 53 seconds; thence along the Arc
of said curve for 46.66 feet (Chord being and distance of South 45 degrees 39
minutes 59 seconds West 41.91 feet) to the P.T. of said curve and a point on the
North right of way line of West Markham Street (at this point the distance from
the centerline of West Markham Street and from the South line of the NE 1/4 NE
1/4 is 51.0 feet; thence North 88 degrees 38 minutes 23 seconds West and along
the North right of way line of West Markham Street and parallel with the South
line of the NE 1/4 NE 1/4 for 160.00 feet to the P.C. of a curve to the left
whose radius is 101.00 feet and delta angle of 37 degrees 25 minutes 51 seconds;
thence along the arc of said curve and North right of way line of West Markham
Street for 65.98 feet (chord bearing and distance of South 72 degrees 26 minutes
51 seconds West 64.82 feet) the P.T. of said curve and a
point 30.0 feet North of the South line of the NE 1/4 NE 1/4; thence North 88
degrees 38 minutes 23 seconds West and along the North right of way line of West
Markham Street and parallel with the South line of the NE 1/4 NE 1/4 for 359.15
feet to the point of beginning, less and except part of the previously mentioned
East-West alley and part of Xxxxxx Street more particularly described as
follows: Beginning at the Southeast corner of Xxx 00, Xxxxx Xxxxxxx Addition to
the City of Little Rock; thence North 00 degrees 29 minutes East and along the
East line of said Lot 13 and the West right of way line of Xxxxxx Street for
26.12 feet; thence South 89 degrees 03 minutes 32 seconds East for 15.33
feet(deed) 17.67 feet(measured); thence South 00 degrees 36 minutes 17 seconds
West for 46.18 feet; thence North 88 degrees 50 minutes 28 seconds West for
128.55 feet; thence North 01 degrees 24 minutes 34 seconds East for 20.0 feet to
the North line of the East-West alley; thence South 88 degrees 50 minutes 28
seconds East for 114.11 feet to the point of beginning, containing 9.5841 acres
including the alley and Street and 9.5154 acres excluding the alley and Street,
now platted as Tract E of Park Plaza Addition, Little Rock, Pulaski County,
Arkansas, as recorded in Plat record C-519, records of Pulaski County, Arkansas.
Tract 5 (Easement):
TOGETHER WITH rights of ingress and egress as set forth in that certain
Construction, Operation, and Reciprocal Easement Agreement recorded as
Instrument No. 86-82744 and amended by First Amendment to Construction,
Operation and Reciprocal Easement Agreement recorded as Instrument No. 88-39542
over and across the following described lands:
A part of the NE 1/4 NE 1/4, Section 1, Township 1 North, Range 13 West, which
includes a portion of "X" Xxxxxx closed by City of Little Rock, Ordinance No.
11,439 and Lots 7 through 13 and Lots 14 through 26, inclusive, Xxxxx Xxxxxxx
Addition to the City of Little Rock, all being in Pulaski County, Arkansas, more
particularly described as follows: From the Southeast corner of the said NE 1/4
NE 1/4; run thence North 88 degrees 38 minutes 23 seconds West and along the
South line of the said NE 1/4 NE 1/4 and the centerline of West Xxxxxxx Xxxxxx
(xx 00 foot width) for 651.67 feet; thence North 01 degrees 21 minutes 37
seconds East for 30.0 feet to the North right of way line of West Xxxxxxx Xxxxxx
and the point of beginning; thence North 88 degrees 38 minutes 23 seconds West
and along the North right of way line of West Markham Street for 264.08 feet;
thence North 01 degrees 21 minutes 37 seconds East for 42.0 feet; thence North
88 degrees 38 minutes 23 seconds West for 250.64 feet; thence North 00 degrees
29 minutes East for 168.54 feet; thence North 88 degrees 37 minutes 06 seconds
West for 150.11 feet to the East right of way line of XxXxxxxx Street (of 30.0
foot width) and a point 15.0 feet East of the West line of the NE 1/4 NE 1/4;
thence North 00 degrees 29 minutes East and along the East right of way line of
XxXxxxxx Street and parallel with the West line of the NE 1/4 NE 1/4 for 556.51
feet xxxx the Northwest corner of Xxx 00, Xxxxx Xxxxxxx Addition to the City of
Little Rock (as recorded in Plat Book 1, Page 62) and the Southwest corner of
an alley (of 20 foot width) running in an East-West direction; thence North 00
degrees 29 minutes East and along the East right of way line of XxXxxxxx Street
and parallel with the West line of the NE 1/4 NE 1/4 for 20.0 feet to the
Southwest corner of Xxx 0, Xxxxx Xxxxxxx Addition and the Northwest corner of
the East-West alley; thence South 88 degrees 5O minutes 28 seconds East and
along the South line of Xxxx 0, 0, 0, 0, 0 xxx 0, Xxxxx Xxxxxxx
Addition to the City of Little Rock and the North line of the East-West alley
for 294.00 feet to the common South corner of Lots 6 and 7, Xxxxx Xxxxxxx
Addition to the City of Little Rock; thence North 00 degrees 29 minutes East and
along the common line of said Lots 6 and 7 for 140.00 feet to the common North
corner of said Lots 6 and 7 and a point on the South right of way line of "C"
Street (varying width right of way); thence South 88 degrees 50 minutes 28
seconds East and along the North line of Lots 7, 8, 9, 10, 11, 12 and 13, Xxxxx
Xxxxxxx Addition to the City of Little Rock and the South right of way line of
"C" Street for 336.50 feet to the Northeast corner of said Lot 13 and the West
right of way line of Xxxxxx Street; thence South 00 degrees 29 minutes West and
along the West right of way line of Xxxxxx Street 140.00 feet to the Southeast
corner of Xxx 00, Xxxxx Xxxxxxx Addition to the City of Little Rock, and a point
on the East-West alley previously mentioned; thence North 88 degrees 50 minutes
28 seconds West and along the South line of Xxxx 00, 00 xxx 00, Xxxxx Xxxxxxx
Addition to the City of Little Rock and along the North line of said East-West
alley for 114.11 feet to a point which is in line with the East wall of a two
story brick building occupied by Xxxxxxx Department Stores, Inc.; thence South
01 degrees 24 minutes 36 seconds West and along the East wall and East wall line
projected both North and South for 594.02 feet to a point; thence South 88
degrees 38 minutes 23 seconds East for 160.36 feet to a point; thence South 01
degrees 21 minutes 37 seconds West for 194.81 feet to the point of beginning;
less and except the East-West alley (of 20 foot width) running through Xxxxx
Xxxxxxx Addition to the City of Little Rock, more particularly described as
follows: Beginning at the Northwest corner of Xxx 00, Xxxxx Xxxxxxx Addition to
the City of Little Rock (as recorded in Plat Book 1, Page 62) and the Southwest
corner of an alley (of 20 foot width) running in an East-West direction; thence
North 00 degrees 29 minutes East and along the East right of way line of
XxXxxxxx Street and parallel with the West line of the NE 1/4 NE 1/4 for 20.0
feet to the Northwest corner of the alley and the Southwest corner of Xxx 0,
Xxxxx Xxxxxxx Addition; thence South 88 degrees 50 minutes 28 seconds East and
along the North line of said East-West alley and the South line of Lots 1, 2, 3,
4, 5, 6, 7, 8, 9, 10 and 11, Xxxxx Xxxxxxx Addition to the City of Little Rock,
516.39 feet; thence South 01 degrees 24 minutes 36 seconds West for 20.00 feet
to a point on the North line of Xxx 00, Xxxxx Xxxxxxx Addition to the City of
Little Rock and a point on the South line of said East-West alley; thence North
88 degrees 50 minutes 28 seconds West and along the North line of Lots 16
through 28, inclusive, Xxxxx Xxxxxxx Addition to the City of Little Rock and the
South line of said East-West alley for 516.07 feet to the point of beginning.
LESS AND EXCEPT Part of Tract D, Park Plaza Addition in the City of Little Rock,
Pulaski County, Arkansas, as recorded in Plat Book C at Page 519, being more
particularly described as follows:
Beginning at the Northwest corner of the Tract A, Park Plaza Addition; thence
North 00 degrees 29 minutes 00 seconds East along the existing East right-of-way
line of XxXxxxxx Street 183.00 feet; thence 05 degrees 10 minutes 05 seconds
East along the proposed East right-of-way line of XxXxxxxx Street .,4.17 feet;
thence North 88 degrees 40 minutes 09 seconds West 18.14 feet to the point of
beginning, containing 10.0577 acres, including East-West alley and 9.8207 acres,
excluding the alley, now platted as Tract B and Part of Tract D of Park Plaza
Addition, Little Rock Pulaski County, Arkansas, as recorded in Plat Book C-519,
records of Pulaski County, Arkansas.
Tract 6 (Easement):
TOGETHER WITH rights of ingress and egress as set forth in that certain
Construction, Operation, and Reciprocal Easement Agreement recorded as
Instrument No. 86-82744 and amended by First Amendment to Construction,
Operation and Reciprocal Easement Agreement recorded as Instrument No. 88-39542
over and across the following described lands:
A part of the NE 1/4 NE 1/4, Section 1, Township 1 North, Range 13 West, Pulaski
County, Arkansas more particularly described as follows: From the Southeast
corner of the said NE 1/4 NE 1/4; run thence North 88 degrees 38 minutes 23
seconds West and along the South line of the said NE 1/4 NE 1/4 and the
centerline of West Xxxxxxx Xxxxxx (xx 00 feet width) for 651.67 feet; thence
North 01 degrees 21 minutes 37 seconds East for 30.0 feet to the North right of
way line of West Xxxxxxx Xxxxxx; thence North 01 degrees 21 minutes 37 seconds
East for 194.81 feet; thence North 88 degrees 38 minutes 23 seconds West for
160.36 feet to a point which is in line with the East wall of a two story brick
building occupied by Xxxxxxx Department Stores, Inc.; thence North 01 degrees 24
minutes 36 seconds East and along the East wall projected North for 594.02 feet
to the North line of an East-West alley and a point on the South line of Xxx 00,
Xxxxx Xxxxxxx Addition to the City of Little Rock; thence South 88 degrees 50
minutes 28 seconds East and along the South line of Xxxx 00, 00 xxx 00, Xxxxx
Xxxxxxx Addition to the City of Little Rock, Pulaski County, Arkansas, and the
North line of the East-West alley for 114.11 feet to the Southeast corner of
said Lot 13; thence North 00 degrees 29 minutes East and along the East line of
said Lot 13 and the West right of way line of Xxxxxx Street for 26.12 feet to a
point; thence South 89 degrees 03 minutes 32 seconds East for 637.63 feet to the
West right of way line of University Avenue (of 80 foot width) and 40.0 feet
West of the East line of the NE 1/4 NE 1/4; thence South and along the West
right of way line of University Avenue and parallel with the East line of the NE
1/4 NE 1/4 for 55.00 to the point of beginning; thence North 89 degrees 03
minutes 32 seconds West for 200.00 feet; thence South 01 degrees 21 minutes 37
seconds West for 200.00 feet; thence North 88 degrees 38 minutes 23 seconds West
for 59.44 feet; thence South 01 degrees 26 minutes 04 seconds West for 368.75
feet; thence North 88 degrees 38 minutes 23 seconds West for 69.86 feet; thence
South 01 degrees 21 minutes 37 seconds West for 150.00 feet; thence South 88
degrees 38 minutes 23 seconds East for 143.81 feet; thence North 01 degrees 21
minutes 37 seconds East for 129.01 feet; thence South 88 degrees 38 minutes 23
seconds East for 200.00 feet to the West right of way line of University Avenue;
thence North and along the West right of way line of University Avenue and
parallel with the East line of the NE 1/4 NE 1/4 for 591.37 feet to the point of
beginning, containing 3.7999 acres, more or less, now platted as Tract F of Park
Plaza Addition, Little Rock Pulaski County, Arkansas, as recorded in Plat Record
C-519, records of Pulaski County, Arkansas.
EXHIBIT B
Scheduled Commissions
1. Lease Commissions Generally. If a Lease, Expansion Space Lease, Expansion
Option, Relocation Lease, Renewal Lease or Renewal Option, as defined in this
Exhibit B, is executed and unconditionally exchanged and delivered between Owner
and Tenant during the term of this Agreement, and the other conditions set forth
in this Exhibit B for earning of the Lease Commission are satisfied, Owner shall
pay to Manager a commission computed in accordance with this Exhibit B (the
"Lease Commission").
2. Definitions: Leases: Expansion Space Leases: Expansion Options: Relocation
Leases: Renewal Leases: and Renewal Options.
(a) "Leases" are documents (other than Specialty License Agreements) that
are executed and unconditionally exchanged and delivered between Owner and
Tenant during the term of this Agreement for the leasing of space at the
Property and where Tenant has paid any required security deposit. (For purposes
of defining terms and computing a Lease Commission, the term Lease may also make
reference to a Tenant's Lease existing as of the date of this Agreement and
throughout the term of this Agreement.)
(b) "Expansion Space Leases" are Leases or separate agreements that provide
for Tenant to annex additional space onto its leased premises as may be defined
in the Lease.
(c) "Expansion Options" are provisions of a Lease whereby a Tenant may
elect to annex additional space onto its leased premises as defined in the
Lease.
(d) "Relocation Leases" are Leases or separate agreements that provide for
Tenant to move from one space to another.
(e) "Renewal Leases" are Leases or separate agreements that provide for
Tenant to extend the length of its lease term. Such Renewal Lease may be in the
form of a newly written Lease or amendment to an existing Lease.
(f) "Renewal Option" is a provision of a Lease whereby Tenant elects to
extend the length of its Lease.
(g) "Initial Term" is that portion of the total lease term not subject to
an early termination option.
(h) "Remainder Initial Term" is that portion of the total lease term
following the expiration of the right to exercise an early termination option.
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3. Lease Commission Computation. The following rates shall be in effect for
all spaces from one to thirty-nine thousand nine hundred ninety-nine (l-39,999)
square feet in size.
(a) Owner shall pay to Manager for Leases, Expansion Space Leases,
Expansion Options, and Relocation Leases a Lease Commission equivalent to one
hundred percent (100%) of the Lease Commission Rate outlined in Section 3(c) of
this Exhibit B.
(b) Owner shall pay to Manager for Renewal Leases and Renewal Options a
Lease Commission equivalent to fifty percent (50%) of the Lease Commission Rate
outlined in Section 3(c) of this Exhibit B.
Notwithstanding anything to the contrary, a Lease Commission shall be paid on a
Renewal Option or Expansion Option so long as such option exercised requires the
active participation of Manager in the negotiation of said Option. Such active
negotiation shall include by way of illustration any and all activity pertaining
to discussions of lease terms, rental rates, terms and tenant improvements.
Lease Commissions shall not be paid to Manager for any option that is exercised
by Tenant and requires no active negotiation by Manager. In no event will any
Lease Commission be paid if this Agreement has been terminated, except for those
transactions listed on the Protected Tenant List as defined in Section 6(ii) of
this Exhibit B.
(c) Lease Commission Rate.
Net Leases of 1-10 years Four (4%) of Effective Minimum Rent (as
hereinafter defined) payable for the Initial
Term and the Remainder Initial Term of the
Lease.
Notwithstanding the foregoing, in no event shall the Lease Commission
payable hereunder exceed:
1. For push carts and kiosks No cap
2. For "food-type tenants which would normally be $15.00 per square foot
considered food court tenants,
and for leases up to 1,000 square feet
3. Leases from 1,000 square feet up to 2,499 square feet $13.00 per square foot
4. Leases from 2,500 square feet up to 3,499 square feet $10.25 per square foot
5. Leases from to 3,500 square feet up to 4,999 square $8.50 per square foot
6. Leases from 5,000 square feet up to 7,499 square feet $7.00 per square foot
7. Leases from 7,500 square feet and over $5.50 per square foot
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With respect to Renewal Leases, the Lease Commissions payable shall be
as follows:
1. For push carts and kiosks No cap
2. For "food-type tenants which would normally be $7.50 per square foot
considered food court tenants, and for leases
up to 1,000 square feet
3. Leases from 1,000 square feet up to 2,499 square feet $6.50 per square foot
4. Leases from 2,500 square feet up to 3,499 square feet $5.13 per square foot
5. Leases from 3,500 square feet up to 4,999 square feet $4.25 per square foot
6. Leases from 5,000 square feet up to 7,499 square feet $3.50 per square foot
7. Leases from 7,500 square feet and over $2.75 per square foot
In no event shall a Lease Commission be payable for Effective Minimum
Rent payable after the tenth (10th) year of the term of the Lease (including
any renewals of such term).
The term "Net Lease" shall mean a Lease under which the Tenant is (a)
required to pay its proportionate share of real estate taxes, common area
maintenance costs, merchants' association dues and Property insurance costs, and
(b) is directly responsible for the cost of all repairs made to the leased
premises. Any Lease which is not a Net Lease shall be deemed a "Gross Lease."
In computing any Lease Commission payable hereunder, "Effective Minimum
Rent" shall include the base rent scheduled in any fully executed Lease, and
shall not include: (a) payments resulting from tax and expense escalation or
pass-through clauses, or consumer price index or other fixed increases paid in
lieu thereof; (b) payments with respect to utilities or utility services; and
(c) percentage rent payments.
If a Tenant is relocated during the term of its Lease to other premises
in the Property, there shall be deducted from the first amounts due in respect
of any Lease Commission payable with respect to such new premises, the amount of
any commission that was paid to Manager with respect to the premises previously
demised to Tenant and attributable to the period of the term of the Lease
covering such premises previously demised from and after the date of such
relocation.
4. Time of Payment. The Lease Commission shall be payable:
(a) Fifty percent (50%) upon execution of the Lease, Expansion Space
Lease, Relocation Lease or Renewal Lease by both Owner and Tenant or upon
Tenant's election to exercise an Expansion Option or Renewal Option pursuant to
the terms of the Lease; and
(b) Fifty percent (50%).
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(i) At the time Tenant first opens for business to the public pursuant
to a Lease or Relocation Lease; or
(ii) Upon the date Tenant opens for business in substantially all of
the annexed space pursuant to an Expansion Space Lease or Expansion Option; or
(iii) Upon the effective date of the Relocation Lease, Renewal Lease
or Renewal Option.
Notwithstanding the foregoing, if the Tenant never takes possession of
the space pursuant to a Lease, Relocation Lease, Expansion Space Lease or
Expansion Option, as the case may be, the second 50% payment for the Lease
Commission shall not be paid and the first 50% payment paid on execution of such
Lease shall be credited for the benefit of Owner when the space is released.
Unless otherwise provided in this Agreement, the Lease Commission with
respect to a Lease, Expansion Space Lease, Expansion Option, Relocation Lease,
Renewal Lease or Renewal Option shall be payable in full within ten (10) days
after Owner's receipt of an invoice from Manager. Notwithstanding anything to
the contrary in this Paragraph 4, the Lease Commission payable shall be for the
Remainder Initial Term shall not become due until the expiration of the Tenant's
right to exercise an early termination option.
5. Unconsummated Leases. Notwithstanding the extent to which negotiations may
progress, if a Lease, Expansion Space Lease, Expansion Option, Relocation Lease,
Renewal Lease or Renewal Option fails to be consummated, fully executed and
unconditionally exchanged for any reason whatsoever, including without
limitation Owner's arbitrary or intentional refusal to enter into the Lease,
Expansion Space Lease, Expansion Option, Relocation Lease, Renewal Lease or
Renewal Option or to agree to any term or condition thereof, Manager shall not
be entitled to any Lease Commission whatsoever in connection with the Lease,
Expansion Space Lease, Expansion Option, Relocation Lease, Renewal Lease or
Renewal Option.
6. Lease Commissions upon Termination of this Agreement. In case of termination
of this Agreement, Manager shall be entitled to compensation as provided in this
Agreement only as to Leases, Expansion Space Leases, Expansion Options,
Relocation Leases, Renewal Leases or Renewal Options which are:
(i) Executed by Owner within two (2) months after termination with
respect to Leases or Relocation Leases and within thirty (30) days
after termination with respect to Expansion Space Leases, Renewal
Leases, Expansion Options or Renewal Options; and
(ii) Executed with any of the prospective tenants specifically
included in a written list (the "Protected Tenant List") to be
provided by Manager to Owner
-36-
within fifteen (15) days after such termination. Only prospective
tenants with which Manager has had substantial involvement prior to
termination of this Agreement such as, but not limited to, the showing
a of particular space or the sending of a written proposal, may be
included on the Protected Tenant List.
Except for Lease Commissions due and payable prior to the date of
termination of this Agreement, no Lease Commissions shall be payable by Owner to
Manager after termination of this Agreement where termination results from the
negligent or willful misconduct by Manager. In case of termination due to a
Default by Manager pursuant to Section 2.3(a) or (b), Lease Commissions shall be
payable to Manager only where Manager has delivered to legal counsel a completed
lease requisition form prior to termination of this Agreement and a Lease,
Expansion Space Lease, Relocation Lease or Renewal Lease is executed within the
time frame specified above in this Section 6.
Broker Compensation.
(a) If Manager engages a Cooperating Third Party Broker as defined in
Section 4.4, then Manager shall agree to divide Manager's Lease Commission with
said Cooperating Third Party Broker in whatever manner Manager and Cooperating
Third Party Broker agree upon.
(b) If a Tenant Representative Broker must; be engaged, then said
engagement and compensation arrangement must be approved by Owner. In the event
a Tenant Representative Broker is engaged, then Manager shall receive a Lease
Commission equivalent to not less than one hundred fifty percent (150%) of the
Lease Commission described in this Exhibit B. Such fee shall be divided with
Tenant Representative Broker, and Manager shall not earn a fee greater than it
would have earned without a Tenant Representative Broker. The Tenant
Representative Broker shall only be entitled to payment if Manager is entitled
to payment hereunder.
8. Department Store Anchors and Reciprocal Easement and Operating Agreements.
(a) For Department Store type anchors of 40,000 square feet or more, a
fee of $1.50 per square foot is payable to Manager capped at $100,000.
(b) Should an expansion of the Property, in which a new department store is
added, require the relocation of an existing department store(s) within the
Property, a fee of $0.50 per square foot not to exceed Fifty Thousand Dollars
($50,000) is payable to Manager for each such relocation.
(c) If (i) the addition of an additional department store to the Property
requires the approval of existing department stores, or negotiation of a
reciprocal easement and operating agreement ("REA") or amendment thereto, or
(ii) negotiation of an REA is requested by the Owner in connection with the
addition of an anchor, any other Property expansion, or by reason of the
expiration of an existing REA provided all necessary department store approvals
are
-37-
secured, or said REA or amendment thereto is executed by all parties thereto
(other than Owner), as applicable, then a fee of Ten Thousand Dollars ($10,000)
is payable to Manager for each such approval secured as well as for each such
execution by a party to the REA (except Owner) or amendment thereto.
9. Ground Lease Commission. The "Ground Lease Commission" shall be payable to
Manager at the rate of five percent (5%) of the total annual fixed minimum
rental to be paid for the first ten (10) years of the Ground Lease term.
10. Land Sale Commission. For sales of peripheral land, a "Land Sale
Commission" shall be payable to Manager at the rate of five percent (5%) of the
gross sales price, payable at closing if there is no cooperating broker. If
there is a cooperating broker, Owner will pay to Manager a commission equal to
ten percent (10%) of the gross sales price to be allocated between Manager and
cooperating broker as they may mutually agree.
-38-
EXHIBIT C
LEASING GUIDELINES
------------------
All Leases shall provide that they are subordinate to the Deed of
Trust and that the lessee agrees to attorn to Lender. Each Lease shall require
continued operation of the lessee's business on the Premises, and reasonably
restrict competing business by such lessee near the Premises. None of the
Leases shall contain (i) any option to purchase; (ii) any right of first
refusal to lease or purchase; (iii) any right to terminate the lease term
(except for "kick-out" provisions in the ordinary course of business and
consistent with industry practice or in the event of the destruction of all or
substantially all of the Property); (iv) any non-disturbance or recognition
agreement; or (v) any term that would materially adversely affect Lender's
rights under the Loan Documents, if any, without, in each case, the prior
consent of Lender.
Owner may enter into a proposed new Lease or a proposed renewal,
extension, modification or amendment of an existing Lease, without the consent
of the Lender, if it (i) is not for more than 5,000 rentable square feet; (ii)
has an initial term of not less than two (2) years (except for specialty license
agreements of less than 1,500 rentable square feet and shorter than twelve (12)
months in duration, which Owner may enter into without the consent of the Lender
and not more than ten (10) years; (iii) provides for rental rates at least
comparable to existing local market rates and is an arm's-length transaction;
(iv) does not contain any options for renewal or expansion by the lessee at
rental rates either below comparable market levels or less than the rental rates
paid by the lessee during the initial lease term; (v) is to an experienced,
creditworthy and reputable lessee in Owner's reasonable business judgment; and
(vi) complies with the requirements of Paragraph 2(b) of the Deed of Trust.
Owner may enter into a proposed Lease, renewal, extension, modification or
amendment that does not satisfy all the conditions in the foregoing clauses (i)
through (vi) only with the prior consent of the Lender, which may not be
unreasonably withheld or delayed. Lender's failure to approve, or disapprove
final execution copies of any proposed new Lease, renewal, extension,
modification or amendment within fifteen (15) business days after Lender's
receipt thereof shall be deemed to constitute Lender's approval thereof;
provided Owner shall have promptly furnished to Lender any pertinent information
reasonably requested by Lender in connection with its consideration.
Manager (i) shall observe and perform the material obligations imposed
upon the lessor under the Leases and shall not do or permit anything to impair
the value of the Leases as security for the Debt; (ii) shall promptly send
copies to Lender of all notices of default that Owner shall send or receive
thereunder; (iii) shall enforce, in accordance with commercially reasonable
practices for properties similar to the Property, the terms, covenants and
conditions in the Leases to be observed or performed by the lessees, short of
termination thereof; (iv) shall not collect any of the Rents more than one month
in advance (other than security deposits); (v) shall not execute any other
assignment of lessor's interest in the Leases or the rents (except as
contemplated by the Loan Documents, if any).
Owner (i) shall not modify any Lease in a manner inconsistent with the
Loan Documents,
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if any; (ii) shall not convey or transfer or suffer or permit a conveyance or
transfer of the Property so as to effect a merger of the estates and rights of,
or a termination or diminution of the obligations of, lessees under Leases;
(iii) shall not consent to any assignment of or subletting under any Lease not
in accordance with its terms without the prior consent of Lender, which may not
be unreasonably withheld or delayed; and (iv) shall not cancel or terminate any
Lease in excess of 5,000 square feet or accept a surrender thereof other than in
connection with a default by the applicable lessee without the prior written
consent of Lender, which may not be unreasonably withheld or delayed.
-40-
EXHIBIT D
LEASE FORM
-00-
XXXXX(XXXX[X]) XXXX
LEASE AGREEMENT
FIELD(TENANT[C])
D/B/A
FIELD(D/B/A)
SPACE NO. FIELD(SPACE#)
INDEX
ARTICLE
1 Leased Premises, Term and Use
2 Exhibits and Original Construction
3 Date on Which Rent Begins
4 Rental
5 Definition of Net Sales
6 Records and Audits
7 Taxes
8 Subordination and Attornment
9 Additional Construction
10 Condition of Premises
11 Repairs and Maintenance
12 Alterations
13 Fixtures and Personal Property
14 Liens
15 Laws and Ordinances
16 Services
17 Joint Use Areas
18 Damage to Premises
19 Insurance
20 Indemnification
21 Assignment, Subletting & Ownership
22 Access to Premises
23 Defaults by Tenant and Remedies
24 Surrender of Premises
25 Tenant's Conduct of Business
26 Rules and Regulations
27 Eminent Domain
28 Attorney's Fees
29 Sale of Premises by Landlord
30 Notices
31 Amendments
32 Successors and Assigns
33 Representations
34 Waiver
35 Holding Over
36 Interpretation
37 Marketing Service
38 Covenant of Title
39 Waiver of Redemption
40 Tenant's Property
41 Lease Status
42 Recording
43 Force Majeure
44 Broker's Commission
45 Limitations on Landlord's Liability
46 Security Agreement
47 Severability
48 Venue; Applicable Law
49 Construction of Lease
50 Captions
51 Objections to Statements
52 No Option
53 Corporate Tenant
54 Financial Statements
55 Environmental Compliance
56 Tenant's Right To Audit
57 Entire Agreement
58 Condition of Leased Premises and Tenant Remodeling
EXHIBITS
EXHIBIT A Plan of Leased Premises
EXHIBIT B Site Plan
EXHIBIT C Schedule for Tenant Improvements
EXHIBIT D Tenant Sign Criteria
THIS LEASE made and entered into this _________ day of ________________,
199__, (hereinafter referred to as the "date hereof") by and between
FIELD(LL[IC]), whose legal address for purposes of this Lease is 55 Public
Square, #1910, Xxxxxxxxx, Xxxx 00000 (hereinafter called "Landlord") and
FIELD(TENANT[IC]), d/b/a FIELD(D/B/A), (hereinafter called "Tenant").
WITNESSETH:
LANDLORD and TENANT hereby agree as follows:
Landlord, for and in consideration of the covenants and agreements
hereinafter set forth to be kept and performed by both parties, does hereby
demise and lease to Tenant (for the term hereinafter stipulated) the premises
(hereinafter called the "Leased Premises") being that portion of a building
shown hatched and dimensioned on the plan attached hereto and made a part hereof
as "EXHIBIT A", to be located in the FIELD(MALL[IC]) Mall (hereinafter called
the "Shopping Center") in the City of FIELD(CITY), FIELD(COUNTY/PARISH), State
of FIELD(STATE), as shown of the site plan attached hereto and made a part
hereof as "EXHIBIT B."
ARTICLE 1
LEASED PREMISES, TERM AND USE
(a) LEASED PREMISES: An area consisting of approximately FIELD(SQ.FT.) square
feet (floor area) with FIELD(IRREG.SIZE?) a front width of approximately
FIELD(WIDTH), and a depth of approximately FIELD(DEPTH) (SPACE NO. FIELD
(SPACE#)) measured to the center line of all walls, common to other tenant
premises, to the exterior faces of all other walls, and to be the building line
or common enclosed mall plane where there is no wall. If the Leased Premises is
to be newly constructed and is not a previously completed room, the Landlord may
confirm the measurements thereof upon completion, and upon notice to Tenant, the
floor area stated in such notice shall be deemed to be the floor area of the
Leased Premises for all purposes of this Lease unless, within ten (10) days
after receipt of notice, Tenant notifies Landlord that Tenant believes
Landlord's measurement to be inaccurate, in which event the Landlord shall
cause its architect or engineer to make such measurement and certify the same to
the parties. The floor area so certified (which may not exceed the floor area
set forth above by more than ten percent (10%)) shall be accepted by the parties
and the Minimum Annual Rental and other charges based on floor area shall be
proportionately adjusted.
(b) TERM: The term of this Lease shall commence upon the date hereof and shall
end upon the January 1st next following the FIELD(TERM#YR) anniversary of the
date upon which rental is determined to commence under the provisions of ARTICLE
3 hereof, unless such date upon which rental shall be determined to commence
shall be January 1st, in which event the term hereof shall end upon the
FIELD(TERM#YR) anniversary of such date of commencement.
(c) USE: The Leased Premises shall be used and occupied only for the purpose
of:
FIELD(USE)
and for no other purpose whatsoever.
(d) TENANT TRADE NAME:
FIELD(D/B/A), or such other name as may be first approved in writing by
Landlord.
(e) TENANT NOTICE ADDRESS(es):
Page 1
(i) Legal Address for Notice:
FIELD(ATTN:)
FIELD(ADD-T)
FIELD(CITY, ST, ZIP)
(ii) Billing Address (if different from above):
FIELD(BILLADD)
ARTICLE 2
EXHIBITS AND ORIGINAL CONSTRUCTION
(a) The exhibits listed below and attached to this Lease are incorporated herein
by this reference:
EXHIBIT "A" Location of the Leased Premises within the
enclosed mall,
EXHIBIT "B" Site Plan of Shopping Center,
EXHIBIT "C" Schedule for Tenant Improvements, Description of
Landlord Work and Tenant Work,
EXHIBIT "D" Tenant Sign Criteria,
(b) The construction of the Shopping Center has as of the date of execution of
this Lease been completed. Notwithstanding Exhibits A, B, C or D or anything
else in this Lease, Landlord reserves the right to change or modify and add to
or subtract from the size and dimensions of the Shopping Center or any part
thereof, the number, location and dimensions of buildings and stores, dimensions
of hallways, malls and corridors, the number of floors in any building, the
location, size and number of tenant spaces and kiosks which may be erected in or
fronting on any mall or otherwise, the identity, type and location of other
stores and tenants, and the size, shape, location and arrangement of joint use
areas, and to design and decorate any portion of the Shopping Center as it
desires, but the general character of the Shopping Center and the size and the
approximate location of the Leased Premises relation to the major department
stores and the main entrances to the enclosed mall portion of the Shopping
Center shall not be substantially changed.
(c) Landlord's ability to perform Landlord's construction obligations hereunder,
if any, is dependent upon prompt receipt of Tenant's plans.
In the event Tenant shall not have commenced Tenant's Work, or any remodelling
work required hereunder, during the time period specified herein, Landlord shall
have the right and option to cancel and terminate this Lease by so notifying
Tenant in writing, in which event Tenant agrees to pay to Landlord, as
liquidated damages, the cost of any work done by Landlord for Tenant's account
(on the basis of the actual cost plus twenty percent (20%) for overhead and
supervision), including, but not limited to, sprinkler and electrical work,
plumbing, concrete floor slabs, and cooled air equipment and facilities, if any.
In the event Tenant shall not have completed Tenant's Work, or any remodelling
work required hereunder, or shall not have opened its store for business as
provided herein, then Tenant's rental shall nevertheless commence on the date on
which Tenant should have opened for business in accordance with the schedule
contained herein at the rate of one-fifteenth (1/15th) of the monthly amount
of Tenant's Minimum Annual Rental payments per day until Tenant shall open for
business.
Page 2
(d) Subject to the provisions of this lease, Landlord agrees, at Landlord's
expense, to perform Landlord's Work in the construction of the Leased Premises
substantially in accordance with the outline specifications entitled "Schedule
for Tenant Improvements, Description of Landlord Work and Tenant Work" attached
hereto and made a part hereof as "EXHIBIT C." All work on the Leased Premises
other than that to be so performed by Landlord is to be done by Tenant, at
Tenant's expense (hereinafter called "Tenant's Work"). Tenant's Work shall
include, but not be limited to, those items listed in Exhibits C and D.
Tenant agrees to commence, proceed diligently with, and complete, its Tenant
Work, or any remodelling work required hereunder, in strict accordance with the
provisions of this Lease pertaining thereto including those set forth in Exhibit
C (including the installation of all store and trade fixtures, equipment, stock
and inventory).
NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, OTHER THAN
ARTICLE 43 HEREOF, TENANT IS REQUIRED TO OPEN THE LEASED PREMISES FOR BUSINESS
TO THE PUBLIC ON OR BEFORE FIELD(T-OPEN).
(e) In the event Landlord is to perform any Landlord Work under this Lease,
Landlord agrees, at Landlord's expense, to obtain and maintain public liability
insurance and Workmen's Compensation insurance adequate to fully protect Tenant
as well as Landlord from and against any and all liability for death of or
injury to person or damage to property caused in or about, or by reason of,
construction of Landlord's Work. Tenant agrees, at Tenant's expense, to obtain
and maintain public liability insurance and Workmen's Compensation Insurance
adequate to fully protect Landlord as well as Tenant from and against any and
all liability for death of or injury to person or damage to property caused in
or about, or by reason of, the construction of Tenant's Work or any remodelling
work done by Tenant.
(f) In the event Landlord's Work and Tenant's Work shall progress
simultaneously, Landlord shall not be liable for any injury to person or damage
to property of Tenant, or of Tenant's employees, licensees or invitees, from any
cause whatsoever occurring upon or about the Leased Premises, and Tenant shall
and will indemnify and save Landlord harmless from any and all liability and
claims arising out of or connected with any such injury or damage.
(g) Tenant hereby agrees that Landlord shall not be in default under this Lease
for any delay in delivery of possession of the Leased Premises to Tenant, except
Tenant shall have no obligation to pay rental hereunder prior to the date that
Landlord makes the Leased Premises available to Tenant. Tenant agrees to accept
possession of the Leased Premises when made available by Landlord and releases
Landlord from any claim whatsoever for damages for any such delay.
(h) During any period of construction or remodeling of the Leased Premises,
Tenant agrees to conduct its labor relations and its relations with its
employees and contractors in such a manner as to avoid all strikes, picketing
and boycotts of, on, or about the Leased Premises and the Shopping Center.
Tenant further agrees that if, during the period of construction or remodelling
of the Leased Premises, any of its employees strike, or if picket lines or
boycott or other visible activities objectionable to Landlord are established,
conducted or carried out against Tenant or its employees, or any of them, on or
about the Leased Premises or the Shopping Center, Tenant shall, at Landlord's
sole option, immediately close the Leased Premises and remove all employees
therefrom until the dispute giving rise to such strike, picket line, boycott or
objectionable activity has been settled to Landlord's satisfaction.
ARTICLE 3
DATE ON WHICH RENT BEGINS
(a) The Minimum Annual Rental, and additional rentals and charges, shall begin
to accrue on the earlier of the following dates:
(i) the date which is set forth in ARTICLE 2 (d) as the date on which
Tenant is required to open for business;
Page 3
OR
(ii) the date on which Tenant shall open the Leased Premises for business
to the public.
ARTICLE 4
RENTAL
Tenant agrees to pay as rental for the use and occupancy of the Leased Premises,
at the times and in the manner hereinafter provided, the following sums of
money.
(a) MINIMUM ANNUAL RENTAL: Tenant, in consideration of said demise, does hereby
covenant and agree with Landlord to pay to Landlord without deduction or set-off
of any kind, the sum of FIELD(MAR) per annum from the rental commencement date
set forth in ARTICLE 3, through the first FIELD(#MO-1ST) months thereafter;
FIELD(MAR2) per annum from the FIELD(COMMENC2) month after the rental
commencement date through the FIELD(#MO-2ND) month thereafter, and FIELD(MAR3)
per annum from the FIELD(COMMENC3) month after the rental commencement date
through the expiration of this Lease term as minimum annual rental (the "Minimum
Annual Rental") for said Leased Premises.
The Minimum Annual Rental shall be payable in twelve (12) equal monthly
installments, in advance, without notice or invoice from Landlord, upon the
first day of each and every month during the term hereof, commencing upon the
date on which rental is determined to commence under the provisions of ARTICLE 3
hereof and ending upon the termination date of this Lease. In the event such
rental shall be determined under the provisions of ARTICLE 3 hereof to commence
on a day other than the first day of a month, then the Minimum Annual Rental for
the period from such commencement date until the first day of the month next
following shall be prorated accordingly. All past due rentals, additional
rentals, and/or other sums due to Landlord under the terms of this Lease shall
bear interest at the maximum legal rate, from the the date thereof until paid by
Tenant. All rentals in this Lease provided (those hereinafter stipulated as well
as Minimum Annual Rental) shall be paid or mailed to:
FIELD(PAY-ADDCO)
X.X. Xxx XXXXX(XXXXX)
Xxxxxxx, XX 00000
or to such other payee or address as Landlord may designate, in writing, to
Tenant.
Notwithstanding anything to the contrary contained in this Lease, in order to
cover the extra expense involved in handling delinquent payments, Tenant, at
Landlord's sole option, shall pay a "late charge" of $200.00 when any
installment of rent (minimum, percentage or other, as may be considered
additional rental under this Lease) is received at the address listed above more
than five (5) days after the due date thereof. It is hereby understood that this
amount is charged as additional rent, and not as penalty or interest, for the
purpose of defraying Landlord's expenses incident to the processing of such
overdue payment.
(b) If the Shopping Center shall at any time during the term of this Lease
contain in excess of FIELD(#STORES) department stores, the Minimum Annual
Rental herein provided for shall automatically be increased ten percent (10%)
upon the date that each additional department store opens for business.
(c) PERCENTAGE RENTAL: In addition to the Minimum Annual Rental, Tenant agrees
to pay the Landlord, in the manner and upon the conditions and at the times
hereinafter set forth, during and for each calendar year of the term hereof and
as "percentage rental" hereunder an amount equal to FIELD(%RATE) of all "net
sales" (as defined in ARTICLE 5 hereof) in excess of the following amounts made
by Tenant in the Leased Premises during any calendar year of the term hereof:
From the rental commencement date set forth in ARTICLE 3 through the first
FIELD(#MO-1ST) months thereafter:
FIELD(BREAKPOINT);
Page 4
From the FIELD(COMMENC2) month after the rental commencement date through the
FIELD(#MO-2ND) month thereafter: FIELD(BREAK2);
From the FIELD(COMMENC3) month after the rental commencement date through the
expiration of this lease term: FIELD(BREAK3).
These amounts shall be prorated for the proportionate part, if any, of (i) the
first calendar year of the term hereof commencing on the date upon which rental
shall commence under ARTICLE 3 hereof and ending on the next following December
31; (ii) any year during which rental payments are terminated as a result of a
casualty or condemnation or otherwise as expressly provided for in this Lease;
and (iii) any year in which these amounts change on a date other than the first
day of such year. The percentage rental shall be first paid for the month in
which the aggregate net sales for such calendar year shall first have exceeded
the breakpoint for such calendar year and thereafter shall be paid monthly on
all additional net sales made during the remainder of such calendar year (or
partial year, as the case may be), such payments to be made not later than the
fifteenth (15th) day of the next following month.
(d) Landlord shall have the one-time right to elect to have a portion of the
average percentage rental paid by Tenant during prior years included within the
Minimum Annual Rental due hereunder. Landlord shall exercise this right by
written notice delivered to Tenant. In the event of such exercise, the rental
described in ARTICLE 4 shall be amended to equal eighty-five percent (85%) of
the average Minimum Annual and percentage rental paid by Tenant over the
preceding three (3) calendar years or since the Commencement Date, whichever
period is shorter. Landlord's notice of exercise shall be accompanied by a
letter agreement: (i) amending ARTICLE 4 in accordance with this ARTICLE 4(d),
(ii) increasing the breakpoint described in ARTICLE 4(c) in such a manner that
the adjusted breakpoint bears the same proportion to the new Minimum Annual
Rental that the previous breakpoint bears to the previous Minimum Annual Rental,
and (iii) deleting ARTICLE 4(d) and 4(e) from the Lease. Such notice shall also
be accompanied by a summary sheet showing in detail the calculations of the new
Minimum Annual Rental and breakpoint. Upon receipt of Landlord's notice, Tenant
shall promptly execute and return the letter agreement, which shall be effective
on the first day of the month following the month in which Landlord exercises
its right hereunder.
(e) If Tenant shall fail to generate and to pay percentage rental in an amount
equal to at least twenty-five percent (25%) of the minimum Annual Rental payable
pursuant to this ARTICLE 4 in at least one (1) of either the fourth (4th) or
fifth (5th) calendar year of the term of this Lease, then Landlord may elect to
terminate this Lease by notice to Tenant given within six (6) months after the
end of the fifth (5th) calendar year and this Lease shall terminate and be null
and void ninety (90) days after delivery of such notice. Tenant may render such
notice of termination inoperative if Tenant shall, within thirty (30) days after
receipt of such notice, agree in writing to increase the Minimum Annual Rental
payable for the sixth (6th) calendar year and each calendar year thereafter by
an amount equal to twenty-five percent (25%) of the Minimum Annual Rental
payable for the sixth (6th) calendar year and each calendar year thereafter.
ARTICLE 5
DEFINITION OF NET SALES
The term "net sales" as used in this Lease shall mean and include (as of the
date of the transaction) the sale price of all goods and merchandise sold or
leased (including gift and merchandise certificates) and charges for all
services and all other receipts from the business performed by Tenant or any
person, firm or corporation selling or leasing goods, merchandise or services
in, upon or from any part of the Leased Premises, whether such amounts shall be
for cash, charge accounts or credit cards, paid or unpaid, collected or
uncollected. Each installment or credit sale shall be treated as a sale for the
full price in the month during which such sale is made, irrespective of whether
or when Tenant receives payment therefor. The term "net sales" shall also mean
and include gross sales from vending machines, (except telephone and postage
stamp); mail or telephone orders received or filled at the Leased Premises; all
deposits not refunded to purchasers; orders taken, although such orders may be
filed elsewhere; insurance proceeds realized for loss of sales, profits, or
business; but deducting or excluding, as the case may be, the following: (a)
refunds and
Page 5
allowances to customers made upon transactions included within net sales, but
not exceeding the selling price of the merchandise returned by the purchaser and
accepted by Tenant; (b) the amount of all sales, use, excise, retailer's
occupation or similar taxes imposed in a specific amount, or percentage upon, or
determined by the amount of retail sales made at the Leased Premises to the
extent that such taxes were added to or absorbed within the sale price of the
merchandise sold and paid directly to the taxing authority by Tenant; (c)
interest, service, finance or sales carrying charges paid by customers for
extension of credit on sales and where not included in the merchandise sales
price; (d) returns to shippers and manufacturers; (e) the amount of sales, not
in the ordinary course of Tenant's business, of fixtures, machinery or equipment
which Tenant has the right to remove from the Leased Premises after use thereof
in the conduct of the Tenant's business in the Leased Premises; and (f) the
value of any exchange or transfer of merchandise between stores of Tenant where
such exchange or transfer is made solely for the convenient operation of
Tenant's business and not for the purpose of consummating a sale made in, at, or
from the Leased Premises. No deduction shall be allowed for uncollected or
uncollectible credit amounts, and no deduction shall be allowed for trade-ins.
ARTICLE 6
RECORDS AND AUDIT
Tenant agrees to record all sales in accordance with generally accepted
accounting principles, which records, together with all sales and income tax
reports, shall be preserved by Tenant for three (3) years, either (a) at the
Leased Premises or (b) at the home or regional offices of Tenant in the
continental United States and made available to Landlord at the Leased Premises
or such offices upon demand. Tenant agrees to deliver to Landlord a statement of
each month's sales on or before the twelfth (12th) day of the following month
and, by January 30th of each year of the term of this Lease, a statement,
certified by a certified public accountant or a financial officer, owner or
partner of Tenant satisfactory to Landlord of the net sales made during the
preceding calendar year. Landlord shall be entitled, at Landlord's expense, to
audit the net sales made during the period covered by such statements either by
Landlord or an auditor designated by Landlord, and to recalculate the rentals
payable for such period. If it shall be determined as a result of such audit or
such certified statement that there has been a deficiency in the payment of
percentage or additional rentals, then such deficiency shall become immediately
due and payable with interest at the maximum legal rate, from the date when said
payments should have been made. In addition, if net sales have been understated
by more than two percent (2%) and Landlord is entitled to an increase in
percentage or additional rental as a result of such understatement, then Tenant
shall pay all costs of such audit, including a $500 administrative charge. In
the event Tenant shall be delinquent in furnishing to Landlord any monthly sales
statement or statements required hereunder, then Landlord shall have the right,
without notice, to conduct such audit as provided by this ARTICLE 6 and any and
all charges occasioned by reason thereof shall be the sole obligation of Tenant,
which obligation shall be deemed an item of additional rental. If net sales are
determined to have been understated by more than five percent (5%), Landlord may
elect to terminate this Lease by notice to Tenant given within six (6) months
after receipt of such statement and this Lease shall terminate and be null and
void sixty (60) days after delivery of such notice.
ARTICLE 7
TAXES
In addition to the Minimum Annual Rental provided for in ARTICLE 4(a) hereof,
Tenant agrees to pay to Landlord additional rental as follows:
(a) Tenant shall pay its proportionate share of all real property taxes and
assessments which may be levied or assessed against the Shopping Center by any
lawful authority for each calendar year commencing on the date on which rental
shall be determined to commence under ARTICLE 3 hereof, excluding taxes or
assessments levied or assessed against land and/or buildings owned or leased by
department stores which may be located in the Shopping Center. Tenant's
proportionate share shall be equal to the product obtained by multiplying such
taxes and assessments, and Landlord's expenses in obtaining or attempting to
obtain any refund or reduction thereof, by a fraction, the numerator of which
shall be the number of square feet of floor area in the Leased Premises and the
denominator of which shall
Page 6
be the total number of square feet of leased floor area in the Shopping Center,
excluding the floor area contained in the department store buildings and the
spaces of tenants occupying 10,000 square feet or more. Should the state in
which the Shopping Center is located or any political subdivision thereof or any
government authority having jurisdiction thereover, impose a tax and/or
assessment (other than a net income or franchise tax) upon or against the rental
payable to Landlord in respect of the Shopping Center, either by way of
substitution for the taxes and assessments levied or assessed against such land
and such buildings, or in addition thereto, such tax and/or assessment shall be
deemed to constitute a tax and/or assessment against such land and such
buildings for the purpose of this ARTICLE 7.
(b) Tenant's proportionate share of all real property taxes and assessments
during the term hereof shall be paid in monthly installments on or before the
first day of each calendar month, in advance, in an amount estimated by
Landlord, provided, that in the event Landlord is required under a mortgage
covering the Shopping Center to escrow real estate taxes, Landlord may, but
shall not be obligated to, use the amount required to be escrowed as a basis for
its estimate of the monthly installments due from Tenant hereunder. Upon receipt
of all tax bills and assessment bills attributed to any calendar year during the
term hereof, Landlord shall furnish Tenant with a written statement of the
actual amount of Tenant's proportionate share of the taxes and assessments for
such year. If the total amount paid by Tenant under this ARTICLE 7 for any
calendar year during the term of this Lease shall be less than the actual amount
due from Tenant for such year, as shown on such statement, Tenant shall pay to
Landlord the deficiency within ten (10) days after demand therefor by Landlord;
and if the total amount paid by Tenant hereunder for any such calendar year
shall exceed such amount due from Tenant for such calendar year, Tenant shall be
entitled to offset the excess against payments next thereafter becoming due
under this ARTICLE 7. For the calendar years in which this Lease commences or
terminates, the provisions of this ARTICLE 7 shall apply and Tenant's liability
for its proportionate share of any taxes and assessments for any such year shall
be subject to a prorata adjustment based on the number of days of any such year
during which the term of this Lease is in effect. A copy of a tax xxxx or
assessment xxxx submitted by Landlord to Tenant shall at all times be sufficient
evidence of the amount of taxes and/or assessments levied or assessed against
the property to which such xxxx relates. Prior to or at the commencement of the
term of this Lease and from time to time thereafter throughout the term hereof,
Landlord shall notify Tenant in writing of Landlord's estimate of Tenant's
monthly installments due hereunder. Landlord's and Tenant's obligations under
this ARTICLE 7 shall survive the expiration of the term of this Lease. No taxes,
assessments, fees or charges referred to in this paragraph shall be considered
as taxes under the provisions of ARTICLE 13 hereof.
ARTICLE 8
SUBORDINATION AND ATTORNMENT
(a) Upon written request of Landlord, or any mortgagee or beneficiary of
Landlord, Tenant will, and in writing, subordinate its rights hereunder to the
lien of any mortgage or deed of trust now or hereafter in force against the land
and building of which the Leased Premises are a part, and upon any building
hereafter placed upon the land of which the Leased Premises are a part and to
all advances made or hereafter to be made upon the security thereof; provided,
however, that the mortgagee or trustee named in said mortgage or trust deed
shall agree that Tenant's peaceable possession of the Leased Premises will not
be disturbed on account thereof, as long as no default exists under this Lease
by Tenant.
(b) In the event any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or deed of trust made by
Landlord covering the Leased Premises, Tenant shall attorn to the purchaser upon
any such foreclosure or sale pursuant thereto and recognize such purchaser as
the Landlord under this Lease, provided, however, that said Purchaser shall
agree that Tenant's peaceable possession of the Leased Premises will not be
disturbed on account thereof, as long as no default exists under this Lease by
Tenant.
Page 7
ARTICLE 9
ADDITIONAL CONSTRUCTION
Landlord hereby reserves the right at any time to make alterations or additions
to, and to build additional stories on, the building in which the Leased
Premises are contained and to build adjoining the same. Landlord also reserves
the right to add to and subtract land from the Shopping Center, and to construct
other buildings or improvements, including elevated or double-deck parking
facilities in the Shopping Center, from time to time and to make alterations or
additions thereto, and to build additional stories on any such building or
buildings, and to build adjoining same. Landlord also reserves the right, at
Landlord's expense, to relocate Tenant to another location in the Shopping
Center of similar size and comparable finish-out, in which case this Lease shall
remain in full force and effect and unmodified except that the provisions of
this Lease shall apply to Tenant's new space upon such relocation. Tenant shall,
if requested by Landlord, execute an amendment to this Lease which sets forth
the new space being leased hereunder and such other items as Landlord may
reasonably require. In the event Tenant is unwilling to relocate to the new
space proposed by Landlord, Landlord may, at its sole option, terminate this
Lease by giving Tenant at least thirty (30) days advance written notice of its
election to terminate.
ARTICLE 10
CONDITION OF PREMISES
Tenant's taking possession of the Leased Premises shall be conclusive evidence
of Tenant's acceptance thereof and that the Leased Premises are in good order
and satisfactory condition. Tenant agrees that no representations respecting the
condition of the Leased Premises and no promises to decorate, alter, repair or
improve the Leased Premises either before or after the execution hereof, have
been made by Landlord or its agents to Tenant unless the same are contained
herein or made a part hereof. Landlord also makes no warranties, express or
implied, in respect of the Leased Premises and Tenant waives any and all
warranties arising by operation of law or otherwise in that connection,
including without limitation, any implied warranty of suitability.
ARTICLE 11
REPAIRS AND MAINTENANCE
Landlord agrees, at its expense, to keep the foundations, sprinkler mains,
structural systems and masonry walls of the Leased Premises in good condition
and repair, but Landlord shall not be liable to Tenant for any damage caused by
the same being or becoming out of repair until it has had reasonable opportunity
to have the necessary repairs made after being notified in writing of the need
for repair by Tenant. Without limiting the generality of the foregoing, Landlord
shall not be liable to Tenant for any damage to merchandise, trade fixtures,
floor coverings, drywall, ceilings, lighting or personal property of Tenant in
the Leased Premises caused by water leakage from water lines, roof leaks,
sanitary sewage, storm drain, sprinkler or cooled air equipment. Tenant shall
continue to pay Minimum Annual Rental, percentage rental and all other charges
or items of additional rent during any period of repair. Tenant agrees, at
Tenant's expense, to keep all other parts of the Leased Premises in good order
and repair, and in a clean, sanitary and safe condition, including the
replacement of equipment, fixtures and all plate glass, and to paint the
interior and store front when necessary in order to maintain at all times a
clean and sightly appearance. If Tenant refuses or neglects to make repairs
and/or maintain the Leased Premises or any part thereof in a manner reasonably
satisfactory to Landlord, Landlord shall have the right, upon giving Tenant
reasonable written notice of its election to do so, to make such repairs or
perform such maintenance on behalf of and for the account of Tenant. In such
event, such work shall be paid for by Tenant as additional rental promptly upon
receipt of a xxxx therefor.
If any damage is caused by any act, omissions or negligence of Tenant or
Tenant's permittees, Tenant shall upon demand pay, or cause its insurance
carrier to pay, for any necessary repairs.
Page 8
ARTICLE 12
ALTERATIONS
Tenant shall not make any structural alterations in any portion of the Leased
Premises, nor any alterations in the storefront or the exterior of the Leased
Premises, nor any interior alterations without, in each instance, first
obtaining the written consent of Landlord. All alterations, additions,
improvements, and Tenant's Work provided for herein, shall become, upon
completion, the property of Landlord, subject to the terms of this Lease.
ARTICLE 13
FIXTURES AND PERSONAL PROPERTY
Any trade fixtures, signs and other personal property of Tenant not permanently
affixed to the Leased Premises shall remain the property of Tenant, subject to
Landlord's lien for unpaid rent, and Landlord agrees that Tenant shall have the
right, at any time, and from time to time, to remove any and all of its trade
fixtures, signs and other personal property which it may have stored or
installed in the Leased Premises, including, but not limiting the same to
counters, shelving, showcases, mirrors and other moveable personal property.
Nothing contained in this ARTICLE 13 shall be deemed or construed to permit
Tenant to remove so much of such personal property, without the immediate
replacement thereof with similar personal property of comparable or better
quality, as to render the Leased Premises unsuitable for conducting the type of
business specified in ARTICLE 1(c) hereof. Tenant, at its expense, shall
immediately repair any damage occasioned to the Leased Premises by reason of the
removal of any such trade fixtures, signs, and other personal property, and upon
expiration or earlier termination of this Lease, shall leave the Leased Premises
in a neat and clean condition, free of debris. All trade fixtures, signs, and
other personal property installed in or attached to the Leased Premises by
Tenant must be new when so installed or attached. Tenant shall pay before
delinquency all taxes, assessments, license fees and public charges levied,
assessed or imposed upon its business operation in the Leased Premises as well
as upon its trade fixtures, leasehold improvements (including, but not limited
to, those Tenant is required to make in accordance with the provisions of
ARTICLE 2 hereof), merchandise and other personal property in, or upon, the
Leased Premises. If any such items of property are assessed with property of
Landlord, then such assessment shall be equitably divided between Landlord and
Tenant to the end that Tenant shall pay only its equitable portion of such
assessment. Landlord shall determine the basis of so prorating any such
assessment and such determination shall be binding upon both Landlord and
Tenant. No taxes, assessments, fees or charges referred to in this paragraph
shall be considered as taxes under the provisions of ARTICLE 7 hereof except any
such taxes, assessments, fees or charges which are apportioned to the Landlord
pursuant to the second preceding sentence.
ARTICLE 14
LIENS
Tenant shall not permit to be created nor to remain undischarged any lien,
encumbrance or charge arising out of any work or work claim of any contractor,
mechanic, laborer or any material supplied or claimed to be supplied by any
materialman which might be or become a lien, encumbrance or charge upon the
Leased Premises or the Shopping Center of which the Leased Premises is a part or
the income therefrom and Tenant shall not suffer any other matter or thing
whereby the estate, right and interest of Landlord in the Leased Premises or in
the Shopping Center of which the Leased Premises is a part might be impaired. If
any lien or notice of lien on account of an alleged debt of Tenant or any notice
of contract by a party engaged by Tenant or Tenant's contractor to work in the
Leased Premises shall be filed against the Leased Premises or the Shopping
Center of which the Leased Premises is a part, Tenant shall, within ten (10)
days after notice of the filing thereof, cause the same to be discharged of
record by payment, deposit or bond in the amount required by a court of
competent jurisdiction or otherwise. If Tenant shall fail to cause such lien or
notice of lien to be discharged within the period provided, then Landlord, in
addition to any other rights or remedies, may, but shall not be obligated to,
discharge the same by either paying the amount claimed to be due or by procuring
the discharge of such lien by deposit or by bonding proceedings; and in any such
event, Landlord shall be entitled, if Landlord so elects, to defend any
prosecution of an action for foreclosure of such lien by the lienor or to compel
the prosecution of an action for the foreclosure of such lien by the lienor and
to pay the amount of the
Page 9
judgment in favor of the lienor with interest, costs and allowances. Any amount
paid by Landlord and all costs and expenses, including attorney's fees, incurred
by Landlord in connection therewith, together with interest thereon at the
maximum legal rate from the respective dates of Landlord's making of the payment
or incurring of the cost and expense, shall be paid by Tenant to Landlord on
demand.
ARTICLE 15
LAWS AND ORDINANCES
(a) Tenant agrees to comply with all laws, ordinances, orders and regulations
affecting the use and occupancy of the Leased Premises and the cleanliness,
safety or operation thereof. Tenant agrees to comply with the recommendations
and requirements of any insurance underwriter, inspection bureau or similar
agency with respect to that portion of the Leased Premises installed by Tenant.
Tenant also agrees to permit Landlord to comply with such recommendations and
requirements with respect to that portion of the Leased Premises installed by
Landlord. In addition, Tenant agrees to comply, to the extent that the same may
be applicable to the Leased Premises, with the standards and requirements and
subsequent amendments thereto of the Xxxxxxxx-Xxxxxxx Act (PL 91-596), known as
the "Occupational Safety and Health Act of 1970," notwithstanding the fact that
Tenant may otherwise be exempted from the provisions of said Act and with the
standards and requirements and subsequent amendments thereto of the Americans
with Disabilities Act.
(b) Tenant agrees not to: (i) permit any illegal or immoral practice to be
carried on or committed on the Leased Premises; (ii) make use of or allow the
Leased Premises to be used for any purpose other than that permitted under
ARTICLE 1(c) hereof or that might invalidate or increase the rate of insurance
therefor; (iii) keep, use or permit to be kept or used on the Leased Premises
any flammable fluids, gases, or explosives without the prior written permission
of Landlord; (iv) use the Leased Premises for any purpose whatsoever which might
create a nuisance or injure the reputation of the Leased Premises or of the
Shopping Center; (v) deface or injure the building of the Leased Premises; (vi)
overload the floors; (vii) commit or suffer any waste; or (viii) install any
electrical equipment that overloads lines.
(c) In connection with the installation of any electrical equipment, Tenant
shall, at Tenant's own expense, make from time to time whatever changes are
necessary to comply with the requirements of the insurance inspectors,
underwriters, government authorities and codes.
ARTICLE 16
SERVICES
(a) Landlord agrees to cause the necessary mains, conduits and other facilities
to be provided to make water, sewer and electricity available to the Leased
Premises and other occupied space in the Shopping Center and to make available
to Tenant water and electrical services through the plumbing and electrical
systems to be provided within the Leased Premises by Tenant, in accordance with
and subject to the provisions of EXHIBIT C hereof.
Tenant shall be solely responsible for and promptly pay all charges for the use
or consumption of sewer, gas, electricity, water and all other utility services.
If Landlord makes available electrical service, it shall be made available as
provided in EXHIBIT C, and Tenant agrees to purchase the same from Landlord and
to pay Landlord, as additional rental on the first day of each month in advance,
for the electrical service at the same cost as would be charged to Tenant from
time to time by the utility company which otherwise would finish such services
and meter the same directly to the Leased Premises. Landlord shall compute
Tenant's monthly electrical demand and consumption from the electrical
information provided by Tenant in Tenant's plans, the operating hours of the
center, the shell construction and local weather data. Landlord shall provide
Tenant with the computations of demand and consumption totals. Review of the
totals may be initiated at Tenant's request or Landlord's option.
Page 10
If Landlord elects to supply water, Tenant shall pay Landlord at the same rate
as would be charged to Tenant by the utility company which otherwise would
furnish such service and meter the same directly to the Leased Premises, but in
any event not less than the minimum monthly charge which would have been charged
by the water utility company for the size of meter which would have been
installed by Tenant in or for the Leased Premises.
(b) Landlord agrees, at its own cost and expense, to construct, operate and
maintain, or cause to be operated and maintained, a Cooled Air System designed
to provide cooled air to, but not within, the Leased Premises in accordance with
the provisions of EXHIBIT C hereof, provided that Tenant's plans and
specifications (EXHIBIT C-2) have been received by Landlord during the time
period required hereunder. If Tenant shall delay Landlord's installation of said
system by failure to submit plans or for any other reason, then and in that
event (in addition to all other remedies for such breach of lease contained
herein) any overtime labor costs or other additional costs resulting from such
delay shall be charged back to Tenant. Landlord's complying with its obligation
under this ARTICLE 16 shall be contingent upon Tenant's compliance with EXHIBIT
C. Tenant agrees to operate said Cooled Air System so that the temperature
within the Leased Premises will be reasonably identical to that within the
enclosed mall.
(c) Tenant agrees to pay Landlord for Tenant's use of the aforesaid Cooled Air
System as additional rental, an annual charge payable monthly in the same manner
as Minimum Annual Rental equal to FIELD(HVAC/SF) per square foot multiplied by
the total number of square feet within the Leased Premises. This charge (the
"Cooled Air Charge") will be billed and paid in twelve (12) equal installments.
However, in no event shall the Cooled Air Charge be less than FIELD(HVAC/YR).
The Cooled Air Charge owed by Tenant hereunder will be increased effective as of
January 1 of each calendar year during the term of this Lease by a percentage
equal to the percentage increase, if any, in (i) the United States Department of
Labor, Bureau of Labor Statistics, Consumer Price Index-U.S. Cities Average
(1982 - 84 = 100) (the "Index") applicable for the month of December of the
immediately preceding calendar year, over and above (ii) the corresponding Index
figure for the first full calendar month of the term of this Lease; provided,
that if such Index should be discontinued, such calculation shall be made by use
of another reputable Index selected by Landlord; and provided further, that if
the base period for the Index (currently 1982 - 84 = 100) is hereafter changed,
the new base period shall be used in making the foregoing calculation.
(d) If Tenant fails to pay any Cooled Air Charge installment payment to Landlord
within ten (10) days from the date such payment is due, Landlord may, without
limitation, cut off and discontinue any such utilities and services furnished to
the Leased Premises, without any liability to Tenant. Any action by Landlord
pursuant to the provisions of this ARTICLE 16(d) shall not be construed as an
eviction or disturbance of Tenant's possession of the Leased Premises, or as an
election by Landlord to terminate this Lease.
(e) Landlord shall not be liable to Tenant in damages or otherwise if the said
utilities or services are interrupted or terminated because of necessary
repairs, installations or improvements, or any cause beyond the Landlord's
reasonable control, nor shall any such interruption or termination relieve
Tenant of the performance of any of its obligations hereunder. Tenant shall
operate the Leased Premises in such manner as to not waste electricity, water or
heating and cooling effect. Landlord may cease to furnish any one or more of
said services without responsibility to Tenant except to connect the service
facilities with such other nearby source of supply as may be available for the
services so discontinued and to adjust the charge accordingly.
(f) Tenant shall not install any equipment which can exceed the capacity of any
utility facilities as specified in EXHIBIT C and if any equipment installed by
Tenant requires additional utility facilities, the same shall be installed at
Tenant's expense in compliance with all code requirements and plans and
specifications, which must be approved in writing by Landlord.
(g) Landlord has the right to take any energy management measures Landlord may
deem necessary for energy conservation which shall include, but not be limited
to, control of all Tenant's energy consumption.
Page 11
(h) If Landlord shall provide or designate a service for collection of refuse
and garbage, Tenant shall use same, at Tenant's expense, provided the cost
thereof is competitive to any identical service available to Tenant.
ARTICLE 17
JOINT USE AREAS
(a) The "joint use areas," as herein referred to, shall consist of all parking
areas (including covered parking areas), landscaped areas, floors, ceilings,
walls, benches, fountains, stairs, fire exits, windows, glass, doors and
hardware, streets, sidewalks, malls, roof (over all portions of the Shopping
Center), driveways, loading platforms, canopies, elevators, escalators,
washrooms, lounges and shelters of the Shopping Center, and other facilities
available for joint use, all as they may from time to time exist and be
available to all the tenants in the Shopping Center, their employees, agents,
customers, licensees and invitees.
(b) Landlord shall, subject to events beyond its reasonable control, maintain,
or cause to be maintained, the joint use areas in good order and repair.
(c) It is understood that certain department stores may be occupants of the
Shopping Center and that one or more other department store companies may become
occupants of a part or parts of Landlord's tract or tracts. Said department
stores may participate in the "joint use area costs" (as hereinafter defined)
incurred by Landlord for the repair and maintenance of all the Shopping Center
in accordance with the terms of their respective agreements with Landlord.
(d) As used in this Lease, the term "joint use area costs" means the total of
all items of expense and cost relating to operating, managing, equipping,
policing and protecting, lighting, repairing, replacing and maintaining the
utility of the joint use areas in at least as good condition as when originally
installed. Such costs and expense shall include, but not be limited to,
maintenance and repair of all parking areas (including covered parking areas),
removal of snow, ice, trash, garbage, rubbish, dirt and debris, all costs of
seasonal decor, costs of planting, replanting and replacing landscaping and
supplies required therefor, and all costs of utilities used in connection
therewith, including, but not by way of limitation, all costs of maintaining
elevators, speed ramps and escalators, lighting facilities and storm drainage
systems, maintenance, repair and depreciation of all items used in the operation
and maintenance of the joint use areas, the costs of heating and cooling the
enclosed malls, labor salaries and benefits, security, all premiums for
Workmen's Compensation insurance, wages, unemployment taxes, social security
taxes and personal property taxes and all premiums for other insurance carried
by Landlord in connection with the joint use areas; fees for required licenses
and permits and administrative costs equal to fifteen percent (15%) of the total
costs of operating and maintaining the "joint use area".
(e) Effective upon the date on which rental shall be determined to commence
under the provisions of ARTICLE 3 hereof, and at any time thereafter, Tenant
shall pay to Landlord as additional rental hereunder, upon demand, but not more
often than once a month, Tenant's share of the joint use area costs (based upon
Landlord's estimates, subject to readjustment as hereinafter provided in
paragraph (f) of this ARTICLE 17), which share shall be computed as follows:
Tenant's proportionate share of joint use area costs shall be equal to the
product obtained by multiplying such joint use area costs (less any
contributions to said costs made by the department stores) by a fraction, the
numerator of which shall be the number of square feet of floor area in the
Leased Premises and the denominator of which shall be the total number of square
feet of leased floor area in the Shopping Center, excluding the floor area
contained in the department store buildings and the spaces of tenants occupying
10,00O square feet or more. Notwithstanding any other provisions of this ARTICLE
17, in no event will Tenant's share of total joint use area costs be less than
an annual minimum payment of FOUR THOUSAND AND NO/100 DOLLARS ($4,000.00).
(f) Within ninety (90) days following the end of each calendar year Landlord
shall furnish to Tenant a statement showing the total joint use area costs for
the calendar year just expired, the amount of Tenant's share of such joint use
area costs and payments made by Tenant during such calendar year under paragraph
(e) of this ARTICLE 17. If Tenant's share of such joint use area costs for such
calendar year shall exceed Tenant's payment so made, Tenant
Page 12
shall pay to Landlord the deficiency within ten (10) days after receipt of said
statement. If the total amount paid by Tenant shall exceed such amount due for
such calendar year, Tenant shall be entitled to offset the excess against
payments next thereafter becoming due.
ARTICLE 18
DAMAGES TO PREMISES
In the event the Leased Premises are hereafter damaged or destroyed or rendered
partially untenable for their accustomed uses by fire or other casualty insured
under the coverage which Landlord is obligated to carry pursuant to ARTICLE
19(a) hereof, then, except as hereinafter provided, Landlord shall promptly
repair said premises and restore the same to substantially the condition in
which they were immediately prior to the happening of such casualty, provided
that Landlord shall not be obligated to expend for such repair an amount in
excess of the insurance proceeds recovered as a result of such damage and that
in no event shall Landlord be required to repair or replace Tenant's stock in
trade, interior partitions, fixtures, equipment, furniture, furnishings, wall
covering, floor covering and draperies. From the date of such casualty until the
Leased Premises are so repaired and restored, Minimum Annual Rental payments and
all items of additional rental, except Taxes and Insurance, shall xxxxx in such
proportion as the square footage of the Leased Premises thus destroyed or
rendered untenantable bears to the total square footage of the Lease Premises,
provided, however, that in the event fifty percent (50%) or more of the Leased
Premises or the Shopping Center of which they are a part be hereafter destroyed
or rendered untenable by fire or other casualty during the term of this Lease
(based upon the cost to replace the premises immediately prior to such fire or
other casualty as shown by certificate of Landlord's architect) or if one (1) or
more department stores are damaged by fire or other casualty such that they will
likely remain closed for business for a period exceeding twelve (12) months,
then Landlord shall have the right to terminate this Lease effective as of the
date of such casualty, by giving Tenant, within thirty (30) days after the
happening of such casualty, written notice of such termination. If said notice
be given within said thirty (30) day period, this Lease shall terminate and
Minimum Annual Rental and all other charges and items of additional rental shall
xxxxx as aforesaid from the happening of such casualty, and Landlord shall
promptly repay to Tenant any rental theretofore paid in advance which has not
been earned at the date of such casualty. If said notice be not given and
Landlord is required or elects to repair or rebuild the Leased Premises as
herein provided, then Tenant shall repair and replace its merchandise, trade
fixtures, furnishings and equipment in a manner and to at least a condition
equal to that prior to its damage or destruction. Except as herein expressly
provided to the contrary, this Lease shall not terminate nor shall there be any
abatement of rental or other charges or items of additional rental as the result
of a fire or other casualty.
ARTICLE 19
INSURANCE
(a) Landlord agrees to self-insure or carry, or cause to be carried, during the
term hereof public liability insurance on the Shopping Center, providing
coverage for personal injury or death arising out of any one occurrence.
Landlord also agrees to self-insure or carry, during the term hereof, insurance
for fire, extended coverage, vandalism and malicious mischief, insuring the
improvements located on Landlord's property in the Shopping Center, including
the Leased Premises and all appurtenances thereto (excluding Tenant's interior
partitions, merchandise, trade fixture, furnishings, equipment and personal
property), such insurance coverage to include Tenant's Work (but excluding
Tenant's merchandise, trade fixtures, furnishings, equipment, wall coverings,
floor covering, drapes, interior partitions and other personal property). Upon
request of Landlord, Tenant shall provide Landlord with a certificate setting
forth the cost of said Tenant's Work. During the term of this Lease or any
renewals or extensions thereof, Tenant agrees to reimburse to Landlord as
additional rental, a prorata share of Landlord's annual total costs for the
premiums for such insurance. Tenant's proportionate share for the costs of the
premiums for such insurance shall be equal to the product obtained by
multiplying Landlord's total costs for such premiums by a fraction, the
numerator of which shall be the number of square feet of floor area in the
Leased Premises and the denominator of which shall be the total number of square
feet of leased floor area in the Shopping Center, excluding the floor area
contained in the department store buildings and spaces of tenants occupying
10,000 square feet or more. Tenant's prorata share of the costs for such premium
shall be due and payable, in advance, as follows:
Page 13
(i) Within ten (10) days after opening, Tenant shall pay to Landlord
Tenant's prorata share of the costs for such premiums for the first full
calendar year of the term of this Lease;
(ii) On the commencement of the payment of rental Tenant shall pay, in
advance, on the first day of each month one-twelfth (1/12th) of Tenant's
annual prorata share of such premium for the next succeeding calendar year.
Tenant's prorata share for the next succeeding calendar year shall be based
upon an estimate determined by Landlord.
In the event that Landlord's estimate for any year is less than Tenant's actual
prorata share, Tenant shall promptly pay such excess to Landlord upon demand. If
the total amount paid by Tenant shall exceed Tenant's actual prorata share for
any year, Tenant shall be entitled to offset the excess against payments next
thereafter becoming due. As deductibles are paid, Tenant will be assessed its
prorata share of the deductible.
(b) Tenant agrees to carry public liability insurance including product and/or
completed operations liability on the Leased Premises; and if the Tenant is in
the business of selling or serving alcoholic beverages, Tenant shall also carry
liquor legal liability (in a State having a Dram Shop Statute, then wording
shall be changed to Dram Shop Liability) during the term hereof, covering Tenant
as an insured, Landlord as an additional insured, and, if Landlord elects, any
owner and/or occupant of a tract in the Shopping Center which adjoins Landlord's
tract or tracts, as additional insureds, with terms and companies satisfactory
to Landlord and giving Landlord, Tenant and other additional insureds a minimum
of ten (10) days written notice by the insurance company prior to cancellation,
termination or change in such insurance. Such insurance shall initially be for
limits of not less than Two Million Dollars ($2,000,000.00) for bodily injury,
including death, and personal injury, arising out of any one occurrence; and not
less than Five Hundred Thousand Dollars ($500,000.00) for damage to property
arising out of any one occurrence, or a policy having a combined single limit of
Two Million Dollars ($2,000,000.00), and Landlord shall have the right, from
time to time, to require Tenant to increase such limits to reasonable amounts.
Tenant further agrees to carry insurance against fire and such other risks as
are, from time to time, included in standard extended coverage insurance, for
the full insurable value, covering all of Tenant's merchandise, interior
partitions, trade fixtures, furnishings, wall covering, floor covering,
draperies, equipment and all other items of personal property of Tenant located
on or within the Leased Premises. Tenant shall provide Landlord with copies of
the policies or certificates evidencing that such insurance is in full force and
effect and stating the terms thereof. Tenant shall at all times maintain
Workmen's Compensation Insurance (or other comparable insurance) under
applicable law and in accordance with applicable statutory minimums covering all
persons employed by Tenant in connection with any work done in or about the
Leased Premises. Tenant shall also carry automobile insurance with respect to
all automobiles used by Tenant in the conduct of its business from the Leased
Premises. Such automobile insurance shall be for limits of not less than One
Million Dollars ($l,000,000.00) for bodily injury, arising out of any one
occurrence, and Five Hundred Thousand Dollars ($500,000.00) for damage to
property arising out of any one occurrence or a combined single limit policy of
One Million Dollars ($l,000,000.00).
(c) Neither Landlord nor Tenant shall be liable to the other or to any
insurance company (by way of subrogation or otherwise) insuring the other party
for any loss or damage to any building, structure or other tangible property,
or any resulting loss of income, or losses under worker's compensation laws and
benefits, even though such loss or damage might have been occasioned by the
negligence of such party, its agents or employees if any such loss or damage is
covered by insurance benefitting the party suffering such loss or damage or was
required to be covered by insurance pursuant to this Lease.
(d) Tenant shall be responsible for the maintenance of the plate glass in or on
the Leased Premises, but shall have the option either to insure the risk or to
self-insure.
Page 14
ARTICLE 20
INDEMNIFICATION
Tenant shall and will indemnify, defend and save harmless Landlord, owner and/or
operator of the Shopping Center, their agents, officers and employees, from and
against any and all liability, claims, demands, damages, expenses, fees, fines,
penalties, suits, proceedings, actions, and causes of action of any and every
kind and nature arising or growing out of or in any way connected with Tenant's
use, occupancy, management or control of the Leased Premises and/or Tenant's
operations or activities in the Shopping Center. This obligation to indemnify
shall include reasonable legal and investigation costs and all other reasonable
costs, expense and liabilities from the first notice that any claim of demand is
to be made or may be made.
ARTICLE 21
ASSIGNMENT, SUBLETTING AND OWNERSHIP
(a) Tenant shall not transfer, assign, sublet, enter into license or concession
agreements, change ownership or hypothecate this Lease or Tenant's interest in
and to the Leased Premises without first procuring the written consent of
Landlord, which Landlord may grant or refuse to grant at its sole discretion.
Any attempt at transfer, assignment, subletting, license or concession
agreement, change of ownership or hypothecation without Landlord's written
consent shall be void and confer no rights upon any third person. The
prohibitions of this ARTICLE 21 shall be construed to refer to any acts or
events which occur by operation of law, legal process, receivership, bankruptcy
or otherwise. Without limiting the generality of the foregoing, Tenant shall not
sublease all or any portion of its interest in the Leased Premises or this Lease
for an amount of rent determined in whole or in part on the income or profits
derived by any person from such interest (other than an amount based on a fixed
percentage or percentages of receipts or sales).
(b) Notwithstanding any assignment or subletting, Tenant and any guarantor of
Tenant's obligations under this Lease shall at all times remain fully
responsible and liable for the payment of the rent herein specified and for
compliance with all of its other obligations under this Lease (even if future
assignments and subletting occur subsequent to the assignment or subletting by
Tenant, and regardless of whether or not Tenant's approval has been obtained for
such future assignments and subletting). In any event of assignment or
subletting, it is understood and agreed that all rentals paid to Tenant by an
assignee or sublessee shall be received by Tenant in trust for Landlord, to be
forwarded immediately to Landlord without offset or reduction of any kind; and
upon election by Landlord such rental shall be paid directly to Landlord. The
consent by Landlord to any transfer, assignment, subletting, license or
concession agreement, change of ownership or hypothecation shall not constitute
a waiver of the necessity for such consent to any subsequent attempted transfer,
assignment, subletting, license or concession agreement, change of ownership or
hypothecation. If Landlord grants its consent Tenant shall pay to Landlord
promptly upon demand, a fee of Twelve Hundred and No/100 Dollars ($1,200.00)
plus any costs (including, without limitation, legal fees) incurred by Landlord
in connection with such transfer, assignment, subletting, license or concession
agreement, change in ownership or hypothecation.
(c) Each transfer, assignment, subletting, license or concession agreement and
hypothecation to which there has been consent shall be by instrument in writing,
in form satisfactory to Landlord, and shall be executed by the transferor,
assignor, sublessor, licensor, concessionaire, hypothecator or mortgagor and the
transferee, assignee, sublessee, licensee, concessionaire, or mortgagee shall
agree in writing for the benefit of Landlord to assume, to be bound by, and to
perform the terms, covenants and conditions of this Lease to be done, kept and
performed by Tenant. One executed copy of such written instrument shall be
delivered to Landlord. Failure to first obtain in writing Landlord's consent or
failure to comply with the provisions of this ARTICLE 21 shall operate to
prevent any such transfer, assignment, subletting, license, concession agreement
or hypothecation from becoming effective.
(d) If Tenant is a corporation, and if the control thereof changes at any time
during the term hereof, then Landlord, at its option, may, by giving sixty (60)
days prior written notice to Tenant, declare such a change a breach of this
Lease, subject to the remedies provided for breach in ARTICLE 23 hereof. The
provisions of the preceding
Page 15
sentence, however, shall not be applicable if control of the corporation changes
as the result of a public offering. If, at any time during the term of this
Lease, any part or all of its outstanding voting stock, if Tenant is a
corporation, or any interest in the partnership, if Tenant is a partnership,
shall be transferred by sale, assignment, bequest, inheritance, operation of
law, or other dispositions so as to result in a change in the present effective
voting control of Tenant by the person or persons owning a majority of said
outstanding voting stock or a majority interest in the partnership, as the case
may be, on the date of this Lease, then such event shall constitute an
assignment for the purposes of this Lease. In the event there is a guarantor of
this Lease, then if at any time during the term of this Lease (a) any part or
all of such guarantor's outstanding voting stock, if such guarantor is a
corporation, or any interest in the partnership, if such guarantor is a
partnership, shall be transferred by sale, assignment, bequest, inheritance,
operation of law, or other disposition so as to result in a change in the
present effective voting control of such guarantor by the person or persons
owning a majority of said outstanding voting stock or a majority interest in the
partnership, as the case may be, on the date of this Lease, or (b) such
guarantor is dissolved, Tenant shall so notify Landlord. Such notice shall be
effective in accordance with this ARTICLE 21, paragraph (d) only if said notice
shall include or state all of the following: (a) that said notice is given
pursuant to ARTICLE 21, paragraph (d) of this Lease; (b) the occurrences giving
rise to such notice, stated with particularity as to the effective date, parties
involved or affected and the shares of interests affected; (c) in the event of a
transfer of shares or a partner's interest, a recent financial statement
(certified by an independent certified public accountant) of the transferee or
transferees; and (d) that Landlord shall have thirty (30) days from receipt of
such notice to terminate this Lease as described in this ARTICLE 21, paragraph
(d). Landlord shall have the right, at its option, to terminate this Lease by
notice to Tenant given within thirty (30) days after Landlord's receipt of such
notice from Tenant. In the event Landlord receives other notice of such transfer
or of the dissolution of such guarantor, then Landlord shall have the right, at
its option, within ninety (90) days after receipt of such other notice, to
terminate this Lease or to declare an event of default under ARTICLE 23 of this
Lease. The foregoing provisions shall not apply to any corporation if, and so
long as, all the outstanding voting stock of such corporation is listed on a
National Securities Exchange as defined in the Securities Exchange Act of 1934,
as amended. For the purposes of this paragraph (d), stock ownership shall be
determined in accordance with the principles set forth in Section 544 of the
Internal Revenue Code of 1954, as the same existed on August 16, 1954, and the
term "voting stock" shall refer to the shares of stock regularly entitled to
vote for the election of directors of the corporation.
ARTICLE 22
ACCESS TO PREMISES
Tenant agrees that Landlord, its agents, employees or servants or any person
authorized by Landlord, may enter the Leased Premises for the purpose of: (a)
inspecting the condition of same; (b) making such repairs, additions or
improvements thereto, or to the building of which they are a part, as Landlord
may elect or be required to make; (c) exhibiting the same to prospective
purchasers of the building in which the Leased Premises are contained; and (d)
placing notices, during the last sixty (60) days of the term hereof, in and
upon the Leased Premises at such places as may be determined by Landlord. Tenant
agrees that neither Tenant nor any person within Tenant's control will interfere
with such notices. Landlord shall use reasonable efforts to minimize its
disturbance of Tenant's business except in cases of emergency.
ARTICLE 23
DEFAULTS BY TENANT AND REMEDIES
(a) The following events shall be deemed to be events of default by Tenant under
this Lease:
(i) Tenant shall fail to pay any installment of rental or any other
obligation hereunder involving the payment of money and such failure shall
continue for a period of five (5) days after written notice thereof to
Tenant; provided, however, that for each calendar year during which
Landlord has already given Tenant written notice of the failure to pay an
installment of rental, no further notice shall be required (i.e., the event
of default will automatically occur on the fifth (5th) day after the date
upon which the rental was due).
Page 16
(ii) Tenant shall fail to comply with any term, provision or covenant of
this Lease (including the timely commencement of any Tenant work required
under any provision of this Lease or any Exhibit thereto), other than as
described in subsection (i) above, and shall not cure such failure within
ten (10) days after written notice thereof to Tenant.
(iii) Tenant or any guarantor of Tenant's obligations under this Lease
shall become insolvent, or shall make a transfer in fraud of creditors, or
shall make an assignment for the benefit of creditors.
(iv) Tenant or any guarantor of Tenant's obligations under this Lease shall
file a petition under any section or chapter of the federal bankruptcy
code, as amended, or under any similar law or statute of the United States
or any state thereof; or Tenant, or any guarantor of Tenant's obligations
under this Lease, shall be adjudged bankrupt or insolvent in proceedings
filed against Tenant or any guarantor of Tenant's obligation under this
Lease.
(v) A receiver or Trustee shall be appointed for the Leased Premises or for
all or substantially all of the assets of Tenant or any guarantor of
Tenant's obligations under this Lease.
(vi) Tenant shall desert or vacate or shall commence to desert or vacate
the Leased Premises or any substantial portion of the Leased Premises or
shall remove or attempt to remove, without the prior written consent of
Landlord, all or a substantial amount of Tenant's goods, wares, equipment,
fixtures, furniture, or other personal property.
(vii) Tenant shall do or permit to be done anything which creates a lien
upon the Leased Premises or any portion of the Shopping Center.
(b) Upon the occurrence of any such events of default, Landlord shall have the
option to pursue any one or more of the following remedies.
(i) Without any further notice or demand whatsoever, Tenant shall be
obligated to reimburse Landlord for the damages suffered by Landlord as a
result of the event of default, and Landlord may pursue a monetary recovery
from Tenant. In this regard, and without limiting the generality of the
immediately preceding sentence, it is agreed that if Tenant fails to open
for business as required in this Lease or, having opened for business,
subsequently deserts or vacates the Leased Premises or otherwise ceases to
conduct business in the Leased Premises as required in this Lease, then
Landlord at its option may seek monetary recovery for the loss of Tenant's
anticipated contribution to commerce within the Shopping Center; moreover,
Landlord and Tenant further agree that inasmuch as the exact amount of
damages would be difficult to determine, liquidated damages will be due
monthly in an amount equal to fifteen percent (15%) of the Minimum Annual
Rental payable for that month (i.e., Tenant will pay Minimum Annual Rental
equal to one hundred fifteen percent (115%) of the amount specified in
ARTICLE 4(a) of this Lease).
(ii) Without any further notice or demand whatsoever Landlord may take any
one or more of the actions permissible at law to insure performance by
Tenant of Tenant's covenants and obligations under this Lease. In this
regard, and without limiting the generality of the immediately preceding
sentence, it is agreed that if Tenant fails to open for business as
required in this Lease or, having opened for business deserts or vacates
the Leased Premises, Landlord may enter upon, change the door locks to and
take possession of such premises in order to protect them from
deterioration and continue to demand from Tenant the monthly rentals and
other charges provided in this Lease, without any obligation to relet;
however, if Landlord does, at its sole discretion, elect to relet the
Leased Premises, such action by Landlord shall not be deemed as an
acceptance of Tenant's surrender of the Leased Premises, unless Landlord
expressly notifies Tenant of such acceptance in writing pursuant to this
subsection (ii), Tenant hereby acknowledging that Landlord shall otherwise
be reletting as Tenant's agent and Tenant furthermore hereby agreeing to
pay to Landlord on demand any deficiency that may arise between the monthly
rentals and other charges provided in this Lease
Page 17
and that actually collected by Landlord. It is agreed in this regard that
in the event Landlord changes the door locks to the Leased Premises,
Landlord will not be required to give Tenant a new key unless Tenant cures
all its defaults hereunder and delivers a security deposit to Landlord in
an amount deemed appropriate by Landlord under the circumstances. Upon the
changing of the door locks, Landlord shall give Tenant written notice as
herein provided stating the name and address or telephone number of the
party from whom, and stating the times at which, a new key may be obtained.
The new key shall be provided only during such party's regular business
hours and only after Tenant has cured all defaults and delivered the
security deposit as provided above. Tenant will reimburse Landlord on
demand for Landlord's attorneys' fees and other expenses in entering the
Leased Premises and changing the door locks, and Landlord shall not be
liable for any damages resulting to Tenant as a result therefrom. It is
further agreed in this regard that in the event of any default described in
subsection (ii) ARTICLE 23 (a) of this Lease, Landlord shall have the right
to enter upon the Leased Premises by force if necessary without being
liable for prosecution or any claim or damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease; and Tenant agrees
to reimburse Landlord on demand for any expenses which Landlord may incur
in thus effecting compliance with Tenant's obligations under this Lease,
and Tenant further agrees that Landlord shall not be liable for any damages
resulting to the Tenant from such action.
(iii) Landlord may terminate this Lease by written notice to Tenant, in
which event Tenant shall immediately surrender the Leased Premises to
Landlord, and if Tenant fails to do so, Landlord may, without prejudice to
any other remedy which Landlord may have for possession or arrearages in
rent (including any interest which may have accrued pursuant to ARTICLE
4(a) of this Lease), enter upon and take possession of the Leased Premises
and expel or remove Tenant and any other person who may be occupying said
premises or any part thereof, by force if necessary, without being liable
for prosecution or any claim for damages therefor. Tenant hereby waives any
statutory requirement of prior written notice for filing eviction or damage
suits for nonpayment of rent. In addition, Tenant agrees to pay to Landlord
on demand the amount of all loss and damage which Landlord may suffer by
reason of any termination effected pursuant to this subsection (iii), said
loss and damage to be determined by either of the following alternative
measures of damage:
(1) Until Landlord is able, through reasonable efforts, the nature of
which efforts shall be at the sole discretion of Landlord, to relet
the Leased Premises, Tenant shall pay to Landlord on or before the
first day of each calendar month the monthly rentals and other charges
provided in this Lease. After the Leased Premises have been relet by
Landlord, Tenant shall pay to Landlord on the twentieth (20th) day of
each calendar month the difference between the monthly rentals and
other charges provided in this Lease for the preceding calendar month
and that actually collected by Landlord for such month. If it is
necessary for Landlord to bring suit in order to collect any
deficiency, Landlord shall have a right to allow such deficiencies to
accumulate and to bring an action on several or all of the accrued
deficiencies at one time. Any such suit shall not prejudice in any way
the right of Landlord to bring a similar action for any subsequent
deficiency or deficiencies. Any amount collected by Landlord from
subsequent tenants for any calendar month, in excess of the monthly
rental and other charges provided in this Lease, shall be credited to
Tenant in reduction of Tenant's liability for any calendar month for
which the amount collected by Landlord will be less than the monthly
rentals and other charges provided in this Lease; but Tenant shall
have no right to such excess other than the above-described credit.
(2) When Landlord desires, Landlord may demand a final settlement.
Upon demand for a final settlement, Landlord shall have a right to,
and Tenant hereby agrees to pay, the difference between the total of
all monthly rentals and other charges provided in this Lease for the
remainder of the term and the reasonable rental value of the Leased
Premises for such period, such difference to be discounted to present
value at a rate equal to the rate of interest which is allowed by law
in the state in which the Shopping Center is located when the parties
to a contract have not agreed on any particular rate of interest.
Page 18
If Landlord elects to exercise the remedy prescribed in subsection (ii)
above, this election shall in no way prejudice Landlord's right at any time
thereafter to cancel said election in favor of the remedy prescribed in
subsection (iii) above, provided that at the time of such cancellation
Tenant is still in default. Similarly, if Landlord elects to compute
damages in the manner prescribed by subsection (iii)(1) above, this
election shall in no way prejudice Landlord's right at any time thereafter
to demand a final settlement in accordance with subsection(iii)(2) above.
(c) It is expressly agreed that in determining "the monthly rentals and other
charges provided in this Lease", as that term is used throughout subsection
(iii)(l) and (iii)(2) above, there shall be added to the Minimum Annual Rental
(as specified in ARTICLE 4 (a) of this Lease) a sum equal to the charges for
maintenance of the joint use area (as specified in ARTICLE 17 of this Lease),
the charges for taxes and insurance (as specified in ARTICLES 7 and 19 of this
Lease) plus one twenty-fourth (1/24th) of the total of all percentage rentals
required to be paid by Tenant (pursuant to ARTICLE 4 of this Lease) because of
net sales during the two full calendar years immediately preceding the date
Landlord initiated action pursuant to said subsections (or, if two full calendar
years have not then elapsed, to the corresponding fraction of all percentage
rentals required to be paid because of net sales during the period commencing
with the Commencement Date of this Lease and concluding with the date on which
Landlord initiated such action).
(d) It is further agreed that, in addition to payments required pursuant to
subsection (b)(ii) and (b)(iii) above, Tenant shall compensate Landlord for the
unamortized cost of leasehold improvements provided by, or wholly or partially
paid for by Landlord whether in the form of a construction allowance or
otherwise along with all expenses incurred by Landlord in repossession
(including, among other expenses, any increase in insurance premiums caused by
the vacancy of the Leased Premises), all expenses incurred by Landlord in
reletting (including, among other expenses, repairs, remodeling, replacements,
advertisements and brokerage fees), all concessions granted to a new tenant upon
reletting (including, among other concessions, renewal options), all losses
incurred by Landlord as a direct or indirect result of Tenant's default
(including, among other losses, any adverse reaction by Landlord's mortgagee or
by other tenants or potential tenants of the Shopping Center) and a reasonable
allowance for Landlord's administrative efforts, salaries and overhead
attributable directly or indirectly to Tenant's default and Landlord's pursuing
the rights and remedies provided herein and under applicable law.
(e) Landlord may restrain or enjoin any breach or threatened breach of any
covenant, duty or obligation of Tenant herein contained without the necessity of
proving the inadequacy of any legal remedy or irreparable harm. The remedies of
Landlord hereunder shall be deemed cumulative and not exclusive of each other.
(f) No re-entry or taking possession of the Leased Premises by Landlord pursuant
to paragraph (b) or (e) of this ARTICLE 23 shall be construed as an election to
terminate this Lease, nor shall it cause a forfeiture of rents or other charges
remaining to be paid during the balance of the term hereof, unless a written
notice of such intention be given to Tenant or unless the termination thereof be
decreed by a court of competent jurisdiction. Notwithstanding any reletting
without termination by Landlord because of any default by Tenant, Landlord may
at any time after such reletting elect to terminate this Lease for any such
default.
(g) All rights and remedies of Landlord herein created, or provided by law, are
cumulative and pursuit or exercise of one or more rights or remedies shall not
preclude pursuit of any other rights or remedies prescribed above or elsewhere
in this Lease or provided by law. Forbearance by Landlord to enforce one or more
of the rights or remedies herein provided or by law upon an event of default
shall not be deemed or construed to constitute a waiver of such default.
ARTICLE 24
SURRENDER OF PREMISES
Tenant shall, upon the expiration of the term hereof, or any earlier termination
of this Lease for any cause, surrender to Landlord the Leased Premises,
including, without limitation, all building apparatus and equipment then upon
the
Page 19
Leased Premises; and all alterations, improvements and other additions which may
be made or installed by either party to, in, upon or about the Leased Premises,
other than movable trade fixtures, signs and other personal property which, if
Tenant is not then in default, remain the property of Tenant as provided in
ARTICLE 13 hereof, shall be surrendered to Landlord by Tenant without any
damage, injury or disturbance thereto, or payment therefor.
ARTICLE 25
TENANT'S CONDUCT OF BUSINESS
Tenant covenants and agrees that, continuously and uninterruptedly from and
after its initial opening for business, it will operate and conduct within the
Leased Premises the business it is permitted to operate and conduct under the
provisions of this Lease, except while the Leased Premises are untenable by
reason of fire or other casualty. Tenant agrees to conduct its business at all
times in a first-class manner consistent with reputable business standards and
practices, and that it will at all times keep and maintain within and upon the
Leased Premises an adequate stock of merchandise and trade fixtures to service
and supply the usual and ordinary demands and requirements of its customers and
that it will keep the Leased Premises in a neat, clean and orderly condition.
Tenant also agrees to conduct Tenant's business under the trade name agreed to
by Landlord in ARTICLE 1. Tenant further agrees to keep open the Leased Premises
and operate the business conducted thereon at such hours and on such days and
evenings of the week as may be determined from time to time by Landlord.
ARTICLE 26
RULES AND REGULATIONS
Landlord agrees that in carrying out the rules and regulations applicable to all
of Landlord's merchant tenants in the Shopping Center, Tenant shall not be
discriminated against, and Tenant covenants and agrees that Tenant will comply
with reasonable rules and regulations set by Landlord from time to time for the
operation of the Shopping Center, including the following:
(a) Tenant shall not affix or maintain upon the glass panes and supports of the
show windows (and within thirty-six (36) inches of any window), doors and the
exterior walls of the Leased Premises, any signs, banners, advertising placards,
names, insignia, trademarks, descriptive material or any other such like item or
items, and Landlord shall have the right, without giving prior notice to Tenant
and without any liability for damage to the Leased Premises, to remove any
signs, advertising placards, names, insignia, trademarks, descriptive material
or any other such like item or items, except such as shall have first received
written approval of Landlord as to size, type, color, location, copy, nature and
display qualities. Anything to the contrary in this Lease notwithstanding,
Tenant shall not affix any sign to the roof of the Leased Premises.
(b) No awning or other projections shall be attached to the outside walls of the
Leased Premises or the building of which they form a part without, in each
instance, the prior written consent of Landlord.
(c) All loading and unloading of goods shall be done only at such times, in the
areas and through the entrances designated for such purpose by Landlord.
Tenant shall advise and use its best efforts to cause its vendors to deliver all
merchandise before noon on Mondays through Fridays and not at any other times.
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.
No parking or storing of tractor trailers will be permitted in the Shopping
Center without Landlord's permission. 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.
Page 20
Except for small parcel packages, no deliveries will be permitted through the
mall unless the Leased Premises do not have a rear service door. In such event,
prior arrangements must be made with the Resident Mail Manager for delivery at
such Leased Premises. Merchandise being received shall immediately be moved into
the Leased Premises and not be left in the service or receiving areas.
(d) All garbage and refuse shall be kept in the kind of container specified by
Landlord, and shall be disposed of in the manner and at the times and places
specified by Landlord. Tenant is responsible for storage and removal of its
trash, refuse and garbage. 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 items which the same are not
designed to receive. All tenant store floor area, including vestibules,
entrances and returns, doors, fixtures, windows and plate glass, shall be
maintained in a safe, neat and clean condition.
(e) No radio or television aerial shall be erected on the roof or exterior walls
of the Leased Premises without the prior written consent of Landlord. Any aerial
so installed shall be subject to removal without notice at any time and any
damage to the walls or roof caused by such removal shall be the responsibility
of Tenant.
(f) Tenant shall not permit or suffer the use of any advertising medium which
can be heard or experienced outside of the Leased Premises, including, without
limiting the generality of the foregoing, flashing lights, searchlights,
loudspeakers or other sound devices, 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 Leased Premises, unless Landlord has previously given its
written consent.
(g) No auction, fire, bankruptcy, going out of business or liquidation sales
shall be conducted on or about the Leased Premises without the prior written
consent of Landlord.
Tenant shall not permit or suffer merchandise of any kind at any time to be
placed, exhibited or displayed outside its Leased Premises, nor shall Tenant use
the exterior sidewalks or exterior walkways of the Leased Premises to display,
store or place any merchandise. No sale of merchandise by tent sale, truckload
sale, or the like shall be permitted on the parking lot or other joint use
areas.
(h) Tenant shall keep Tenant's display windows illuminated and the signs and
exterior lights lighted each and every day of the term hereof during the hours
designated by Landlord. Tenant shall promptly repair any malfunctions in sign
lighting; or at Landlord's request, Tenant shall turn sign lighting off until
such malfunction is corrected.
(i) The outside areas immediately adjoining the Leased Premises shall be kept
clear at all times by Tenant and Tenant shall not place nor permit any
obstructions, garbage, refuse, merchandise or displays in such area.
(j) Nothing is to be attached or placed on the roof or exterior walls of the
Leased Premises, and Tenant's access to the roof is to be limited to inspection
for damages only. Absolutely no roof penetrations shall be made by Tenant.
(k) Landlord may from time to time designate specific areas in which vehicles
owned or operated by Tenant or Tenant's employees must be parked and may
prohibit the parking of any such vehicles in any other part of the joint use
areas. Landlord will formally notify Tenant, at Tenant's Shopping Center
address, of such parking designation. Upon receipt and acknowledgement of said
notice, Tenant shall notify each of its employees of the provisions of this
paragraph prior to commencing employment connected with the Leased Premises.
Tenant shall furnish Landlord a list of license numbers of the motor vehicles
operated by Tenant and Tenant's employees within five (5) days after request by
Landlord, and Tenant shall thereafter notify Landlord of any and all changes to
such list within five (5) days after each change occurs. Landlord may cause to
be towed away, at Tenant's expense, any violating vehicles, and Tenant waives
any liability of Landlord to Tenant resulting therefrom; or Landlord may, for
any such violating vehicles, charge Tenant, as additional rental, a daily rate
equal to Ten Dollars ($10.00) for each violating vehicle per day or part
thereof. All amounts due under the provisions of this paragraph shall be paid by
Tenant upon demand.
Page 21
(l) Tenant shall use, at Tenant's expense, such pest extermination contractor as
Landlord may direct and at such intervals as Landlord may require, providing the
cost thereof is competitive to any similar service available to Tenant.
(m) Tenant, its employees and/or agents, shall not solicit business in the
parking or other joint use areas, nor shall Tenant, its employees and/or it
agents, distribute any handbills or other advertising matter in or on
automobiles parked in the parking or other joint use areas.
Other than as permitted under the provisions of the EXHIBITS, Tenant shall not
permit or suffer any advertising medium to be placed on enclosed mall walls, on
Tenant's mall or exterior windows, on standards in the enclosed mall, on the
sidewalks or on the parking lot areas, or outside walls or roof, 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 Leased Premises.
(n) In the event Landlord installs a central music system in the Shopping
Center, and Tenant desires to purchase an outside music system, then in that
event, Tenant shall purchase such system from Landlord, provided Landlord's
charge therefor is competitive to any similar service available to Tenant.
(o) Tenant shall not carry on any trade or occupation or operate any instrument,
apparatus or equipment which omits an odor or causes a noise discernible outside
of the Leased Premises and which may be deemed offensive in nature.
(p) Tenant shall not place or maintain any temporary fixtures for the display of
merchandise, other than those approved by Landlord in accordance with EXHIBIT C
hereof, within six (6) feet of any entrance to the Leased Premises, and Landlord
shall have the right, without giving prior notice to Tenant and without any
liability for damage to the Leased Premises or Tenant's merchandise, to remove
any of the same from the Leased Premises, except such as shall have first
received the written approval of Landlord as to size, color, location, nature
and display qualities.
(q) Tenant shall not permit or suffer any portion of the Leased Premises to be
used for lodging purposes.
(r) Tenant shall not, in or on any part of the (inside or outside) joint use
areas:
Vend, peddle, or solicit orders for sale or distribution of any
merchandise, device, service, periodical, book, pamphlet or other matter
whatsoever;
Exhibit any sign, placard, banner, notice or other written material;
Distribute any circular, booklet, handbill, placard or other material;
Solicit membership in any organization, group or association or
contribution for any purpose;
Create a nuisance;
Use any joint use area (including the enclosed mall) for any purpose when
none of the other retail establishments within the Shopping Center is open for
business or employment;
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; or
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.
Page 22
(a) Tenant agrees to comply with regulations requiring a clear exiting path
through Tenant's stockroom to Tenant's rear exit door if the Leased Premises
contain a rear door.
Landlord shall, for the enforcement of the covenants, conditions and
agreements now or hereafter made a part of this ARTICLE 26, to be referred to as
"Rules and Regulations," have all remedies in this Lease provided for
breach of the provisions hereof.
ARTICLE 27
EMINENT DOMAIN
(a) In the event the entire Leased Premises shall be appropriated or taken under
the power of eminent domain by any public or quasi-public authority, this Lease
shall terminate and expire as of the date of such taking, and both Landlord and
Tenant shall thereupon be released from any liability thereafter accruing
hereunder. In the event more than twenty-five percent (25%) of the square
footage of floor area (including mezzanine, if any) of the Leased Premises is
taken under the power of eminent domain by any public or quasi-public authority,
or if by reason of any appropriation or taking, regardless of the amount so
taken, the remainder of the Leased Premises is not usable for the purposes of
which the Leased Premises were leased, then either Landlord or Tenant shall have
the right to terminate this Lease as of the date Tenant is required to vacate a
portion of the Leased Premises so taken upon giving notice to the other in
writing of such election within sixty (60) days after the date of such taking.
In the event of such termination, both Landlord and Tenant shall thereupon be
released from any liability thereafter accruing hereunder. In the event a
portion of the Shopping Center shall be taken, condemned or transferred as
aforesaid and as a result thereof Landlord, in its sole discretion, elects to
discontinue the operation of Landlord's remaining parcel, Landlord may cancel
this Lease by giving Tenant notice of its election and this Lease shall
terminate and shall become null and void ninety (90) days after said notice and
the provisions with respect to the awards shall be as set forth in paragraph (b)
of this ARTICLE 27.
(b) Whether or not this Lease is terminated, Landlord shall be entitled to the
entire award or compensation in such proceedings, but nothing herein shall be
deemed to affect Tenant's right to apply for and receive a separate award for
compensation or damages for its fixtures and personal property. If this Lease is
terminated as hereinabove provided, all items of rent, additional rent and other
charges for the last month of Tenant's occupancy shall be prorated and Landlord
agrees to refund to Tenant any rent, additional rent or other charges paid in
advance.
(c) Except as otherwise provided in the final sentence in paragraph (a) of this
ARTICLE 27, if both Landlord and Tenant elect not to so terminate this Lease,
Tenant shall remain in that portion of the Leased Premises which shall not have
been appropriated or taken as herein provided, and Landlord agrees, at
Landlord's cost and expense, to, as soon as reasonably possible, restore the
remaining portion of the Leased Premises to a complete unit of like quality and
character as existed prior to such appropriation or taking; and thereafter the
Minimum Annual Rental provided for in ARTICLE 4 hereof shall be adjusted on an
equitable basis, taking into account the relative value of the portion taken as
compared to the portion remaining. For the purpose of this ARTICLE 27, a
voluntary sale or conveyance in lieu of condemnation, but under threat of
condemnation, shall be deemed an appropriation or taking under the power of
eminent domain.
ARTICLE 28
ATTORNEY'S FEES
In the event that at any time during the term of this Lease either Landlord or
Tenant shall institute any action or proceeding against the other relating to
the provisions of this Lease, or any default hereunder, then, and in that event,
the unsuccessful party in such action or proceeding agrees to reimburse the
successful party for the reasonable expenses of attorney's fees and
disbursements incurred therein by the successful party,
Page 23
ARTICLE 29
SALE OF PREMISES BY LANDLORD
In the event of any sale or exchange of the Leased Premises by Landlord and
assignment by Landlord of this Lease, Landlord shall be and is hereby entirely
freed and relieved of all liability under any and all of its covenants and
obligations contained in or derived from this Lease arising out of any act,
occurrence or omission relating to the Leased Premises or this Lease occurring
after the consummation of such sale or exchange and assignment.
ARTICLE 30
NOTICES
All notices and demands given under this Lease shall be in writing and shall be
personally delivered, or sent by registered mail or certified mail, return
receipt requested, or sent by a nationally recognized overnight courier service,
(i.e., Federal Express or Airborne) return receipt requested or the equivalent,
and addressed, if to Landlord, at the address set forth on page 1 hereof as the
Landlord's address, and if to Tenant, addressed to Tenant at the legal address
for notice in ARTICLE 1, or such other address as was last specified
respectively through written notice by Landlord or Tenant. Delivery shall be
deemed effective (i) when the same is personally delivered, if delivered in
person, (ii) the third (3rd) day after same is deposited in an official United
States Post Office, certified or registered mail, return receipt requested,
postage prepaid and properly addressed, if sent through the United States mail
service or (iii) the first (1st) day after same is given to a courier service
for next day delivery, fees prepaid and properly addressed, if given to a
nationally recognized overnight courier service.
ARTICLE 31
AMENDMENTS
No amendment, modification of or supplement to this Lease shall be effective
unless in writing and executed by both Landlord and Tenant. Landlord shall be
under no obligation to amend this Lease; however, if at Tenant's request, a
written amendment is entered into by Landlord and Tenant, Tenant shall pay to
Landlord promptly upon demand, a fee of Twelve Hundred and No/100 Dollars
($1,200.00) plus any costs (including without limitation, legal fees) incurred
by Landlord in connection with such amendment.
ARTICLE 32
SUCCESSORS AND ASSIGNS
All covenants, promises, conditions, representations and agreements herein
contained shall be binding upon, apply and inure to the parties hereto and their
respective heirs, executors, administrators, successors and assigns; it being
understood and agreed, however, that the provisions of ARTICLE 21 are in no way
impaired by this ARTICLE 32.
ARTICLE 33
REPRESENTATIONS
It is understood and agreed by Tenant that Landlord and Landlord's agents have
made no representations or promises with respect to the Leased Premises or the
making or entry into this Lease, except as in this Lease expressly set forth,
and that no claim or liability, or cause for termination, shall be asserted by
Tenant against Landlord for, and Landlord shall not be liable by reason of, the
breach of any representations or promises not expressly stated in this Lease.
ARTICLE 34
WAIVER
The failure of Landlord to insist upon strict performance by Tenant of any of
the covenants, conditions, and agreements of this Lease shall not be deemed a
waiver of any of Landlord's rights or remedies and shall not be deemed a waiver
of any subsequent breach or default by Tenant in any of the covenants,
conditions and agreements
Page 24
of this Lease. No surrender of the Leased Premises shall be affected by
Landlord's acceptance of rental or by any other means whatsoever unless the same
be evidenced by Landlord's written acceptance of such as a surrender.
ARTICLE 35
HOLDING OVER
If Tenant or any party claiming under Tenant remain in possession of the Leased
Premises, or any part thereof, after any termination or expiration of this
Lease, no tenancy or interest in the Leased Premises shall result therefrom, but
such holding over shall be an unlawful detainer and all such parties shall be
subject to immediate eviction and removal, and Tenant shall pay upon demand to
Landlord, during any period which Tenant shall hold the Leased Premises after
the term has expired, as liquidated damages, a sum equal to all percentage
rental and additional rental provided for in this Lease plus an amount computed
at the rate of double the Minimum Annual Rental for such period.
ARTICLE 36
INTERPRETATION
The parties hereto agree that it is their intention hereby to create only the
relationship of Landlord and Tenant, and no Provision hereof, or act of either
party hereunder, shall ever be construed as creating the relationship of
principal and agent, or a partnership, or a joint venture or enterprise between
the parties hereto.
ARTICLE 37
MARKETING SERVICE
(a) Landlord will establish a Marketing Service to furnish and maintain
professional advertising and sales promotions which is intended to benefit the
merchants in the Shopping Center. In conjunction with said Service, Landlord
agrees to provide personnel, including sufficient secretarial services, to pay
salaries and benefits for such personnel, and to pay for office rental,
utilities, supplies, telephone and all equipment expense necessary for efficient
operation. A committee composed of a representative of each department store, an
equal number of representatives of the mall tenants, and a representative of
Landlord will be formed by Landlord to review the advertising and promotional
activities sponsored by the Service.
Tenant agrees to pay for the Marketing Service an amount equal to FIELD(MKSERSF)
per square foot of the floor area of Leased Premises per year, or a minimum
annual fee of FIELD(MKSERYR), whichever is greater, payable in equal monthly
installments on the same day rental is due under ARTICLE 3 hereof (hereinafter
called the "Marketing Service Fee"). All monies received under this ARTICLE
37(a) shall be used solely for the purpose of advertising and promotional
services of the Shopping Center. The Marketing Service Fee owed by Tenant
hereunder will be increased effective as of January 1 of each calendar year
during the term of this Lease by a percentage equal to the percentage increase,
if any, in (i) the United States Department of Labor, Bureau of Labor
Statistics, Consumer Price Index-U.S. Cities Average (1982 - 84 = 100) (the
"Index") applicable for the month of December of the immediately preceding
calendar year, over and above (ii) the corresponding Index figure for the first
full month of the term of this Lease; provided that if such Index should be
discontinued, such calculation shall be made by use of another reputable Index
selected by Landlord and provided further, that if the base period for the Index
(currently 1982 - 84 = 100) is hereafter changed, the new base period shall be
used in making the foregoing calculation.
(b) Landlord shall plan as a part of the yearly advertising and sales promotion
calendar, a variety of joint advertising efforts which Landlord deems to be in
the best sales traffic generation interest of the Shopping Center. Tenant agrees
to join in a minimum of XXXX said joint advertising efforts per calendar year
(prorated for partial calendar years) with a minimum of one-quarter (1/4) page
print ad or the equivalent expenditure in broadcast or other effort planned by
Landlord.
Landlord's representative shall supply to Tenant's designee a schedule of the
coming year's joint advertising efforts no later than ninety (90) days prior to
the close of the previous calendar year. Tenant agrees to supply to Landlord
Page 25
a list of at least FIELD(#JTADSYR) said joint advertising efforts in which
Tenant will advertise within thirty (30) days of its receipt of the above
mentioned notice from Landlord. Tenant may adjust its commitment at any time so
long as it joins in a minimum of FIELD(MINJTADS) joint advertising efforts
during the calendar year.
If Tenant fails to fulfill its advertising obligation set forth above for any
calendar year, then Tenant shall, within sixty (60) days after the end of such
calendar year, pay to Landlord the difference between the amount properly spent
by Tenant in fulfillment of its advertising obligation, and one percent (1%) of
Tenant's gross sales for such calendar year. Funds paid to the Landlord pursuant
to the preceding sentence shall be spent for the promotion of the Shopping
Center in such a manner Landlord may determine.
Tenant may, at its option, pay the equivalent of FIELD(#OPADS) one-quarter (l/4)
page ads or the equivalent amount in broadcast or other media selected by the
Shopping Center, into an advertising pool which Landlord agrees to use to
advertise Tenant's store or in a method deemed appropriate by Landlord. Said
monies will be adjusted yearly by the increase or decrease in the cost of
aforementioned one-quarter (l/4) page ad or equivalent broadcast or other effort
planned by Landlord.
ARTICLE 38
COVENANT OF TITLE
Landlord covenants that it has full right, power and authority to make this
Lease and that Tenant or any permitted assignee or sublease of Tenant, upon the
payment of the rentals and performance of the covenants upon Tenant's part to be
performed hereunder, shall and may peaceably and quietly have, hold and enjoy
the Leased Premises and improvements thereon during the term or any renewal or
extension hereof.
ARTICLE 39
WAIVER OF REDEMPTION
Tenant hereby expressly waives any and all rights of redemption granted by or
under any present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Landlord obtaining possession of
the Leased Premises by reason of the violation by Tenant of any of the covenants
and conditions of this Lease or otherwise. The rights given to Landlord herein
are in addition to any rights that may be given to Landlord by any statute or
otherwise.
ARTICLE 40
TENANT'S PROPERTY
Landlord, its agents or employees, shall not be liable and Tenant waives all
claims for any damage to persons or property sustained by Tenant or any person
claiming through Tenant located on the Leased Premises, nor for the loss of or
damage to any property of Tenant or of others by theft or otherwise whether
caused by other tenants or persons in the Shopping Center or in the Leased
Premises, occupants of adjacent property, or the public, or caused by operations
in construction of any private, public or quasi-public work. All property of
Tenant kept or stored on the Leased Premises shall be so kept or stored at the
risk of Tenant only and Tenant shall hold Landlord harmless from any claims
arising out of damage to the same or damage to Tenant's business, including
subrogation claims by Tenant's insurance carrier.
ARTICLE 41
LEASE STATUS
At any time and from time to time, upon request of Landlord, Tenant will, within
ten (10) days thereafter, execute, acknowledge and deliver to Landlord an
instrument prepared by Landlord stating, if the same be true, that this Lease is
a true and exact copy of the Lease between the parties hereto, that there are no
amendments hereon (or stating what amendments there may be), that the same is
then in full force and effect and that, to the best of Tenant's knowledge,
Page 26
there are then no offsets, defenses or counterclaims with respect to the payment
of rental reserved hereunder or in the performance of the other terms, covenants
and conditions hereof on the part of Tenant to be performed, and that as of such
date no default has been declared hereunder by either party hereto and that
Tenant at the time has no knowledge of any facts or circumstances which it might
reasonably believe would give rise to a default by either party.
ARTICLE 42
RECORDING
Tenant shall not record this Lease. However, upon the request of either party
hereto the other party shall join in the execution of a memorandum or so-called
"short form" of this Lease for the purposes of recordation. Said memorandum or
short form of this Lease shall describe the parties, the Leased Premises and the
term of this Lease and shall incorporate this Lease by reference.
ARTICLE 43
FORCE MAJEURE
In the event that either party hereto shall be delayed or hindered in or
prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, inability to procure materials, failure of
power, restrictive governmental laws or regulations, riots, insurrection, war or
other reason of a like nature not the fault of the party delayed in performing
work or doing acts required under the terms of this Lease, then performance of
such act shall be excused for the period of delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay. The provisions of this ARTICLE 43 shall not operate to
excuse Tenant from the prompt payment of Minimum Annual Rental, percentage
rental, additional rental or any other payments required by the terms of the
Lease.
ARTICLE 44
BROKER'S COMMISSION
Tenant warrants that it has dealt with no broker or agent in connection with
this Lease, and agrees to indemnify and save Landlord harmless from all claims,
actions, damages, costs and expenses and liability whatsoever, including
reasonable attorneys' fees, that may arise from any claim by or through Tenant
for commission or finder's fees in connection with this Lease.
ARTICLE 45
LIMITATIONS ON LANDLORD'S LIABILITY
Notwithstanding anything to the contrary contained in this Lease, in the event
of any default or breach by Landlord with respect to any of the terms, covenants
and conditions of this Lease to be observed, honored or performed by Landlord,
Tenant shall look solely to the estate and property of Landlord in the land and
building owned by Landlord comprising the Shopping Center for the collection of
any judgment (or any other judicial procedures requiring the payment of money by
Landlord) and no other property or assets of Landlord shall be subject to levy,
execution, or other procedures for satisfaction of Tenant's remedies.
ARTICLE 46
SECURITY AGREEMENT
(a) For valuable consideration and as security for the payment of rent and other
charges becoming due hereunder, Tenant hereby grants to Landlord a security
interest in the following described collateral: (i) All inventory in the Leased
Premises during the term of this Lease; (ii) all equipment and other personalty
placed in the Leased Premises during the lease term of this Lease; and (iii)
all of the proceeds of said inventory, equipment and personalty.
Page 27
(b) Upon the happening of any of the following events or conditions, namely: (i)
default in the payment of rental or performance of any of the obligations or of
any covenant or liability contained or referred to herein; (ii) making of any
levy, seizure or attachment of the collateral; or (iii) death, dissolution,
termination of existence, insolvency, business failure, appointment of a
receiver, assignment for the benefit of creditors by, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against, Tenant or any
guarantor of Tenant: thereupon, or any time thereafter (such default not having
previously been cured) Landlord shall then have the remedies of a secured party
under the laws of the state in which the Leased Premises are located, including,
without limitation thereto, the right to take possession of the collateral, and
for that purpose Landlord may enter upon the Leased Premises and remove the same
therefrom. Landlord will give Tenant at least ten (10) days prior written notice
of any public sale thereof or of the date after which any private sale or any
other intended disposition is to be made, and at any such sale the Landlord may
purchase the collateral.
(c) This security agreement and the security interest and collateral created
hereby shall be terminated when all of the rental and other charges becoming due
during the term of this Lease or extension thereof have been paid in full.
(d) Upon request by Landlord, Tenant agrees to execute and deliver to Landlord a
financing statement in a form sufficient to perfect the security interest of
Landlord in the aforementioned property and proceeds thereof under the
provisions of the Uniform Commercial Code (or corresponding state statute or
statutes) enforced in the state in which the Shopping Center is located, as well
as any other state the laws of which Landlord may at any time consider to be
applicable.
ARTICLE 47
SEVERABILITY
Every covenant and obligation contained in this Lease, including, without
limitation, the obligation to pay rent, is and shall be construed as a separate
and independent covenant and obligation. If any term or provision of this Lease
or its application to any person or circumstances shall, to any extent, be held
invalid or unenforceable, the remainder of this Lease and the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law. If Tenant is a lessee under another lease agreement with
Landlord or an affiliate of Landlord, a default under this Lease shall
constitute a default under such other lease and vice versa.
ARTICLE 48
VENUE; APPLICABLE LAW
The parties hereto agree that the laws of the State of Texas shall govern the
interpretation, validity, performance and enforcement of this Lease. Venue for
any action under this Lease shall be in the Courts of Dallas County, Texas.
ARTICLE 49
CONSTRUCTION OF LEASE
Tenant declares that Tenant has read and understands all parts of this Lease,
including all printed parts hereof. It is agreed that in the construction and
interpretation of the terms of this Lease the rule of construction that a
document is to be construed most strictly against the party who prepared the
same shall not be applied, it being agreed that both parties hereto have
participated in the preparation of the final form of this Lease.
ARTICLE 50
CAPTIONS
Captions throughout this instrument are for convenience and reference only, and
the words contained therein shall in no way be held to explain, restrict,
modify, amplify or aid in the interpretation, construction or meaning of the
Page 28
provisions of this Lease. The use of the terms "hereof", "hereunder" and
"herein" shall refer to this Lease as a whole, inclusive of the exhibits, except
when noted otherwise. The use of the masculine or neuter genders herein shall
include the masculine, feminine and neuter genders. The singular form shall
include the plural when the context so requires. As used herein the terms
"Landlord" and "Tenant" shall mean and include "Landlord" and "Tenant" and
"its/their agents and employees," unless the context otherwise requires.
ARTICLE 51
OBJECTION TO STATEMENTS
Tenant's failure to object to any statement, invoice or billing rendered by
Landlord within a period of thirty (30) days after receipt thereof shall
constitute Tenant's acquiescence with respect thereto and shall render such
statement, invoice or billing an account stated between Landlord and Tenant.
ARTICLE 52
NO OPTION
The submission of this Lease for examination does not constitute a reservation
of or option for the Leased Premises or any other space within the Shopping
Center, and shall vest no right in Tenant. This Lease shall become effective as
a lease only upon execution and delivery thereof by the parties hereto. Tenant
acknowledges that it does not have any exclusive rights in the Shopping Center
with respect to the sale or lease of its merchandise or services.
ARTICLE 53
CORPORATE TENANT
If Tenant is or will be a corporation, the persons executing this Lease on
behalf of Tenant hereby covenant, represent and warrant that Tenant is a duly
incorporated or duly qualified (if foreign) corporation and is authorized to do
business in the state where the Shopping Center is located (a copy or evidence
thereof to be supplied to Landlord upon request); and that the person executing
this Lease on behalf of Tenant is an officer of such Tenant, and is duly
authorized to sign and execute this Lease.
ARTICLE 54
FINANCIAL STATEMENTS
(a) Tenant acknowledges that it has provided or will provide Landlord with its
financial statement(s) as a primary inducement to Landlord's agreement to lease
the Leased Premises to Tenant, and that Landlord has relied or will rely on the
accuracy of said financial statement(s) in entering into this Lease. Tenant
represents and warrants that the information contained in said financial
statement(s) is true, complete and correct in all material aspects, and agrees
that the foregoing representations shall be a precondition to this Lease.
(b) At the request of Landlord, Tenant shall, not later than ninety (90) days
following the close of each fiscal year of Tenant, and from time to time upon
request of Landlord during the term of the Lease, furnish to Landlord a balance
sheet of Tenant as of the end of such fiscal year and a statement of income and
expense for the year then ended, together with an opinion of an independent
certified public accountant satisfactory to Landlord or, at the election of
Landlord, a certificate of the chief financial officer, owner or partner of
Tenant to the effect that the financial statements have been prepared in
conformity with generally accepted accounting principles consistently applied
and fairly present the financial condition and results of operations of Tenant
as of and for the period covered.
ARTICLE 55
ENVIRONMENTAL COMPLIANCE
(a) Landlord makes no warranties regarding the environmental condition of the
Leased Premises and Shopping Center. Tenant acknowledges it has been afforded an
opportunity prior to the execution of this Lease to conduct the
Page 29
investigations and inspections it deems necessary to determine that the
environmental condition of the Leased Premises and Shopping Center are
acceptable. The term "Hazardous Materials" as used herein shall mean (a) any
substance the presence of which requires special handling, investigation,
notification or remediation under any federal, stare or local statute,
regulation, ordinance, order, action, policy or common law; (b) any substance
which is or becomes defined as a "hazardous waste," "hazardous substance,"
pollutant or contaminant under any federal, state or local statute, regulation,
rule or ordinance or amendments thereto, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
section 9601 et seq.), the Resource Conservation and Recovery Act (42 U.S.C,
section 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. section 2601
et seq.), the Federal Insecticide Fungicide and Rodenticide Control Act (7
U.S.C. section 136 et seq.), the Occupational Safety and Health Act of 1970 (29
U.S.C. section 651 et seq.), the Emergency Planning and Community Right to Know
Act of 1986 (42 U.S.C. section 11001 et seq.), the Clean Water Act (33 U.S.C.
section 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. section 300f et
seq.), the Hazardous and Solid Waste Amendments of 1984 (Public Law 86-616, Nov.
9, 1984), the Hazardous Materials Transportation Act (49 U.S.C. section 1801 et
seq.), and the Federal Clean Air Act (42 U.S.C. section 7401 et seq.); (c) any
substance which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department, commission board,
agency or instrumentality of the United Stares, the state in which the Leased
Premises is located or any political subdivision thereof; any substance the
presence of which on the Shopping Center causes or threatens to cause an
erosion, contamination, drainage or nuisance problem at the Shopping Center or
to adjacent properties (including on nearby public roads and rights-of-way) or
poses or threatens to pose a hazard to the health or safety of persons on or
about the Shopping Center; any substance which contains gasoline, diesel fuel or
other petroleum hydrocarbons; and (d) any substance which contains
polychlorinated biphenyls, asbestos, or urea formaldehyde foam insulation.
Tenant shall not use, and shall not permit any subtenant, licensee,
concessionaire, employee, agent or invitee to use, any portion of the Leased
Premises or the Shopping Center, for the placement, storage, manufacture,
disposal or handling of any Hazardous Materials. Landlord shall have the right
to conduct from time to time such inspections of the Leased Premises as Landlord
deems appropriate in its sole discretion to determine the existence of any
Hazardous Materials therein. In the event Tenant places or discovers any
Hazardous Materials in the Leased Premises, Tenant shall immediately notify
Landlord thereof. Tenant shall not attempt any removal, abatement or remediation
of any Hazardous Materials in the Leased Premises, or any remodeling or
construction in the Leased Premises which might disturb or release any Hazardous
Materials, without first obtaining the prior written consent of Landlord.
Landlord shall have the right to inspect, review and approve any removal,
abatement or remediation of any Hazardous Materials, including, without
limitation, the right to approve the scope, timing and techniques of any such
work and the appointment of all contractors, engineers, inspectors and
consultants in connection with any such work. After written notice to Landlord,
Tenant shall proceed with reasonable diligence to effect the removal abatement
or remediation of any Hazardous Materials in the Leased Premises, or to proceed
with remodeling or reconstruction which might be disturbed or released as a
result of any remodeling or construction in the Leased Premises, in accordance
with Landlord's requirements therefor. Tenant shall be responsible for the cost
of any removal, abatement or remediation work of any Hazardous Materials placed,
stored, manufactured, disposed of or handled by Tenant or Tenant's subtenants,
licensees or concessionaires, or any of their respective employees, agents,
invitees, in the Leased Premises or any other portion of the Shopping Center and
for the cost of any removal, abatement, or remediation of any Hazardous
Materials which might be disturbed or released as a result of any remodeling or
construction in the Leased Premises by Tenant, or Tenant's subtenants, licensees
or concessionaires, or any of their respective employees or agents. Such costs
shall include, without limitation, the cost of any consultant retained by
Landlord in connection with such work. Tenant shall indemnify Landlord, owner
and/or operator of the Shopping Center, their agents, officers and employees,
and hold them harmless, from and against any loss, cost, liability or expense
(including reasonable attorneys' fees and expenses and court costs) arising out
of the placement, storage, manufacture, disposal, handling, removal, abatement
or remediation of any Hazardous Materials by Tenant, or any removal, abatement
or remediation of any Hazardous Materials required hereunder to be performed or
paid for by Tenant, with respect to any portion of the Shopping Center, or
arising out of any breach by Tenant of its obligations hereunder,
(b) Without limiting its obligations set forth herein, Tenant covenants
and agrees to comply with all laws, rules, regulations and guidelines now or
hereafter made applicable to the Leased Premises respecting the disposal of
waste,
Page 30
trash, garbage and other matter (liquid or solid), generated by Tenant,
including, but not limited to, laws, rules, regulations and guidelines
respecting recycling and other forms of reclamation (all of which are herein
collectively referred to as "Waste Management Requirements"). Tenant covenants
and agrees to comply with all rules and regulations established by Landlord to
enable from time to time to comply with Waste Management Requirements applicable
to Landlord (i) as owner of the Leased Premises, and (ii) in performing
Landlord's obligations under this Lease, if any, Tenant covenants and agrees to
indemnify, defend, protect and hold Landlord, owner and/or operator of the
Shopping Center, their agents, officers and employees harmless from and against
all liability (including costs, expenses and attorneys' fees) that Landlord may
sustain by reason of Tenant's breach of its obligations under this paragraph.
(c) Tenant's obligations hereunder shall survive the expiration of the lease
term or earlier termination of this Lease.
ARTICLE 56
TENANT'S RIGHT TO AUDIT
Tenant shall have the right, at Tenant's sole cost and expense, to audit the
Landlord's records of real estate taxes (Article 7), joint use area costs
(Article 17), and insurance premium costs (Article 19(a)) for the Shopping
center ("occupancy costs") subject to, and conditioned upon, the following:
(a) No audit may be conducted during the month of December or the month
immediately following the end of Landlord's fiscal year. Tenant's auditor shall
make an appointment with the Landlord's audit supervisor. Landlord and Tenant
shall reasonably cooperate to arrange a mutually acceptable time within
sixty (60) days of Tenant's request; notwithstanding the foregoing, Landlord
shall not be required to accommodate Tenant's auditors if other Tenants have
scheduled audits prior to Tenant's request on the date proposed by Tenant.
(b) Before conducting any audit, Tenant must pay the full amount of the
occupancy costs billed and must not be in default of any other provision of this
lease or any other lease Tenant may have with Landlord or an affiliate of the
Landlord.
(c) Tenant may review only those records of Landlord that are specifically
related to the occupancy costs for the shopping center of which the Leased
Premises are a part and Tenant may not review any leases (other than Tenant's
lease), operating agreements, anchor store agreements or Landlord's tax returns
or financial statements.
(d) The audit must be done by an employee of Tenant who is a certified public
accountant or by an independent certified public accountant whose fee is paid by
Tenant and whose fee is not paid on a contingency basis and who is experienced
in auditing shopping center records. Landlord shall have the right to approve
any such auditor, such consent not to be unreasonably withheld.
(e) The audit shall be conducted during Landlord's business hours in the
Landlord's office in Cleveland, Ohio, or, at Landlord's sole option, in another
location determined by Landlord (i.e, the mall office of the shopping center).
The audit must be completed within sixty (60) days after it is commenced.
(f) Upon receipt thereof, Tenant will deliver to Landlord a copy of the audit
report and all accompanying data.
(g) Tenant will keep confidential all agreements involving the rights provided
herein and the results of any audits conducted hereunder. Notwithstanding the
foregoing, Tenant shall be permitted to furnish the foregoing information to its
attorneys, accountants and auditors to the extent necessary to perform their
respective services for Tenant.
(h) The audit shall be conducted in accordance with generally accepted auditing
standards.
Page 31
(i) Tenant may not conduct an audit more often than once each calendar year and
any audit conducted by Tenant shall be limited to the occupancy costs records
for the calendar year immediately preceding the calendar year during which
Tenant's audit is conducted. Tenant may not review Landlord's records for years
other than the calendar year immediately preceding the calendar year of the
audit.
(j) The audit risk set forth herein is exclusive to Tenant and is not granted to
any assignee, sublessee or successor in interest to Tenant.
(k) Tenant expressly waives its right to audit any other costs connected with
the Shopping Center unless Landlord expressly grants Tenant such right to Tenant
in writing and the audit by Tenant of any other costs connected with the
Shopping Center shall be in accordance with the criteria set forth herein.
ARTICLE 57
ENTIRE AGREEMENT
IT IS UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT THIS LEASE SHALL
CONSTITUTE THE ONLY AGREEMENT BETWEEN THEM RELATIVE TO THE LEASED PREMISES AND
THAT NO ORAL STATEMENTS OR PRIOR WRITTEN MATTER EXTRINSIC TO THIS INSTRUMENT
SHALL HAVE ANY FORCE OR EFFECT. TENANT ACKNOWLEDGES AND AGREES THAT NEITHER
LANDLORD NOR ANY AGENT OR REPRESENTATIVE OF LANDLORD, INCLUDING ANY LEASING
AGENT ACTION ON BEHALF OF LANDLORD, HAS MADE, AND TENANT HAS NOT RELIED UPON,
ANY REPRESENTATIONS OR ASSURANCES AS TO TENANT'S PROJECTED OR LIKELY SALES
VOLUME, CUSTOMER TRAFFIC, PROFITABILITY, OR THE NUMBER OR TYPES OF TENANTS
WHICH WILL OR WILL NOT BE LOCATED IN THE SHOPPING CENTER OR THE TYPE OF
MERCHANDISE OR SERVICES THAT OTHER TENANTS IN THE SHOPPING CENTER WILL OR WILL
NOT OFFER TO THE PUBLIC. TENANT ALSO ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT
ANY PROJECTIONS, MATERIALS OR DISCUSSIONS HAVE RELATED TO TENANT'S PROJECTED OR
LIKELY SALES VOLUME, CUSTOMER TRAFFIC OR PROFITABILITY, TENANT UNDERSTANDS THAT
ANY AND ALL SUCH PROJECTIONS, MATERIALS AND DISCUSSIONS ARE BASED SOLELY UPON
LANDLORD'S OPINION, LANDLORD'S EXPERIENCES AT OTHER PROPERTIES OR UPON
STANDARDIZED MARKETING STUDIES, AND THAT SUCH PROJECTIONS, MATERIALS AND
DISCUSSIONS SHALL NOT BE CONSTRUED AS A PROMISE OR GUARANTY THAT TENANT WILL
REALIZE THE SAME OR SIMILAR RESULTS.
(The remainder of this page intentionally left blank.)
Page 32
IN WITNESS WHEREOF, Landlord and Tenant have executed the Lease, in triplicate,
as of the Date(s) set forth below their respective signatures hereto.
FIELD(LL[C])
Signed and acknowledged in BY: FIRST UNION MANAGEMENT, INC.
the presence of: Managing Agent
_____________________________________ By:____________________________
First Witness as to Landlord Xxxxxx X. Xxxxx Xx.,
Executive Vice President
_____________________________________ And:____________________________
Second Witness as to Landlord Xxxxxxx X. Xxxxxxx, Esq.
Vice President-Leasing
LANDLORD
Date:_________________
Signed and acknowleded in FIELD(TENANT[C])
the presence of: d/b/a FIELD(D/B/A)
_____________________________________ By:_____________________________
First Witness as to Tenant President
_____________________________________ ____________________________
Second Witness as to Tenant Secretary
TENANT
Date:_________________
NOTE: THIS LEASE MUST BE BOTH WITNESSED AND NOTARIZED.
This Lease is being forwarded for your approval and execution on the
understanding that it shall not become effective until it is accepted by
Landlord and its counsel and executed and delivered by Landlord.
Page 33
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named FIRST UNION MANAGEMENT, INC., a Delaware corporation,
by Xxxxxx X. Xxxxx, Xx., its Executive Vice President, and Xxxxxxx X. Xxxxxxx,
Esq., its Vice President-Leasing, who acknowledged that they did sign the
foregoing instrument and that the same is the free act and deed of said
corporation, and their free act and deed personally and as such officers.
IN TESTIMONY WHEREOF, I have here unto set my hand and official seal at
Cleveland, Ohio, this _________ day of _________________________________,19___.
________________________________
NOTARY PUBLIC
STATE OF )
) SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named, a corporation, by _________________________, its
_______________________________, and _______________________________, its
_________________ who acknowledged that they did sign the foregoing instrument
and that the same is the free act and deed of said corporation, and their free
act and deed personally and as such officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
_______________________________, this _______ day of ___________________, 19___.
________________________________
NOTARY PUBLIC
Page 34
ADDENDA
This Addenda dated this ___ day of ______________________, 199__, is
attached to and made part of this Lease by and between FIELD(LL[IC]), "Landlord"
and FIELD(TENANT[IC]), d/b/a FIELD(D/B/A) "Tenant".
ARTICLE 58
CONDITION OF LEASED PREMISES AND TENANT REMODELING
Notwithstanding anything in this Lease to the contrary, Tenant acknowledges that
it has examined the Leased Premises and knows the condition thereof and accepts
the Leased Premises in the "as is" condition in which the Leased Premises exists
on the day the Leased Premises are turned over to Tenant without any
representations or warranties of any kind or nature whatsoever by Landlord as to
their condition. Tenant assumes the sole responsibility for the condition,
operation, maintenance and management of the Leased Premises, and all
improvements now or hereafter situated thereon, and Landlord shall not be
required to furnish any facilities or services or make any repairs or structural
changes, additions or alterations thereto. Tenant also agrees at its sole cost
and expense to remodel the Leased Premises. Such remodeling shall be in
accordance with the criteria set forth in Exhibit "C" hereof, along with any
other requirements of Landlord and in accordance with Tenant's Plans which are
first approved by Landlord and which Tenant shall submit to Landlord for its
approval in accordance with the provisions set forth in Exhibit "C." This
remodeling shall be a major remodel and shall include, but not be limited to,
renovation of Tenant's storefront (which at Landlord's option shall be a pop-out
storefront), painting of the interior of the Leased Premises, and recarpeting of
the Leased Premises. Tenant shall complete the remodel of the Leased Premises no
later then FIELD(COMPLETE). Provided Tenant timely completes such remodel in
accordance with the Tenant Plans approved by Landlord and the requirements
hereof, Landlord agrees to reimburse Tenant for the remodel performed and the
material provided in connection with such remodel. The amount of such
reimbursement shall be the sum of FIELD(T.ALLOW) and shall be payable to Tenant
within (30) days after all of the following: (1) The full completion of the
remodel; (2) Tenant provides Landlord with Tenant's fully executed affidavit
that the remodel has been completed in accordance with the Tenant Plans; (3) The
acceptance by Landlord of the remodel; (4) Tenant has delivered to Landlord all
lien waivers and, other items required by Landlord along with the certificates
of insurance for the various types of insurance required to be obtained and
maintained by Tenant pursuant to ARTICLE 19 of the Lease; (5) Tenant has
delivered to Landlord a completed W-9 form; (6) Tenant has performed all duties,
promises, agreements, conditions or other obligations of the Lease and is not in
default or in violation of any provision thereof or in default or violation of
any other agreement with Landlord or an affiliate of Landlord; and (7) Tenant
has opened the Leased Premises for business.
ARTICLE 59
RADIUS RESTRICTION
Tenant agrees that neither Tenant nor any affiliate or subsidiary of Tenant
shall own, operate, manage or have any interest in any store or business
selling merchandise similar to that permitted under Article 1 (c) of this Lease
within three (3) miles of the Shopping Center. If Tenant should violate this
covenant, Landlord may, in addition to Landlord's other rights and remedies,
include the sales of such other store or business in the Net Sales transacted in
the Leased Premises for the purpose of computing Percentage Rate due hereunder,
if any. Any such store or business operated by Tenant as of the date of this
Lease shall be excluded herefrom, provided there is no increase in the size of
such other store or business.
Page 35
Page 1 of Addenda
Page 36
GUARANTY
FOR VALUE RECEIVED and in consideration for and as an inducement to
Landlord making the within lease with Tenant, the undersigned, on behalf of
himself, his legal representatives, heirs, successors and assigns,
unconditionally and absolutely guarantees to Landlord, Landlord's successor and
assigns, the full performance and observance of all the provisions therein
provided to be performed and observed by Tenant, including the rules and
regulations, without requiring any notice of non-payment, non-performance, or
non-observance, or proof, notice, or demand, whereby to charge the undersigned
therefor, all of which the undersigned expressly waives and expressly agrees
that the validity of this agreement and the obligations of the Guarantor
hereunder shall in no event and in no manner be terminated, affected or impaired
by reason of the assertion by Landlord against Tenant of any of the rights or
remedies reserved to Landlord pursuant to the provisions of the within Lease.
The undersigned further agrees that this Guaranty shall remain and continue in
full force and effect as to any renewal, modification or extension of this
Lease. As a further inducement to Landlord to make this Lease and in
consideration thereof, Landlord and the undersigned agree that in any action or
proceeding brought by either Landlord or the undersigned against the other on
any matters whatsoever arising out of, under, or by virtue of the terms of this
Lease or of this Guaranty, that Landlord and the undersigned shall and do hereby
waive trial by jury.
Dated:_______________________
Witnesses: Guarantor:
______________________________. __________________________
Name: FIELD(GUARANTOR)
Address: FIELD(ADD-G)
STATE OF ss.
COUNTY OF ss.
Personally appeared before me, a Notary Public in and for said State
FIELD(GUARANTOR), known personally by me, and being sworn, did dispose and say
that s(he) executed the foregoing LEASE AGREEMENT as Guarantor thereof.
WITNESS MY HAND AND THIS NOTARIAL SEAL this ___ day of _____________, 19__.
_________________________________
NOTARY PUBLIC IN AND FOR THE STATE OF
_________________________________
Printed Name:____________________
My Commission Expires:___________
Page 37
EXHIBIT E
SCHEDULE OF EMPLOYEES
Intentionally Left Blank
-42-
EXHIBIT F
Optional Services
I) Except as otherwise provided in this Agreement, Optional Services shall
include, but are not limited to, services that are rendered in connection with
the following:
(a) Expansion and/or renovation of the Property;
(b) Obtaining any financing, refinancing, or additional financing for
the Property;
(c) Preparation for and/or participation in hearings and/or litigation
beyond disputes with Tenants and beyond the scope of this Agreement as set
forth in Section 3.25;
(d) Major reconstruction or repair as defined in Section 3.4(d);
Optional Services provided by Manager shall be compensated at rates to be
agreed upon by Manager and Owner.
-43-
EXHIBIT G
CHART OF ACCOUNTS
First Union Real Estate Investments
Management Agent Chart of Accounts
Account # Account Name
--------- --------------------------------------------------------
1000 Land
1001 Land Improvements
1010 Building
1020 Building Improvements
1030 Construction in Process
1040 Tenant Alterations
1100 Company Car/Truck
1110 Building Equipment - Interior
1111 Building Equipment - Exterior
1120 Office Equipment
1130 Telephone System
1140 Furniture & Fixtures
1160 Deferred Lease Costs
1180 Deferred Lease Commissions
1201 Accumulated Depreciation Land Improvements
1210 Accumulated Depreciation Building
1220 Accumulated Depreciation Building Improvements
1240 Accumulated Depreciation Tenant Alterations
1300 Accumulated Depreciation Company Car/Truck
1310 Accumulated Depreciation Building Equipment - Interior
1311 Accumulated Depreciation Building Equipment - Exterior
1320 Accumulated Depreciation Office Equipment
1330 Accumulated Depreciation Telephone System
1340 Accumulated Depreciation Furniture & Fixtures
1360 Accumulated Amortization Lease Cost
1380 Accumulated Amortization Deferred Lease Commission
1400 Cash
1420 Xxxxx Cash
1430 Short Term Investments
1452 Intercompany
1500 Accounts Receivable
1520 Reserve for Bad Debt
1
Account # Account Name
--------- --------------------------------------------------------
1555 Insurance Claims Receivable
1570 Miscellaneous Receivable
1600 Percentage Rnt/Overages Receivable
1605 Sales Audit Accr-% Rent Receivable
1610 Escalations Rents Receivable
1620 Common Area Income Receivable
1630 Tax Participation Income Receivable
1640 Electric Income Receivable
1650 Store HVAC Income Receivable
1655 Accrued Insurance Income
1660 Billing Disputes - Contra
1700 Insurance Receivable
1720 Merchant Association Dues Receivable
1750 Deposits and Advances
1755 Repairs and Other Escrow
2400 Accounts Payable
2420 Security Deposits Payable
2430 Merchant Association Payable
2432 Mktg. Fund Deficit/Surplus
2435 Sales Tax Payable
2500 FICA Income Tax Withheld
2505 Federal Income Tax Withheld
2510 State Tax Withheld
2515 City/Local Income Tax Withheld
2520 Workers Compensation Withheld
2525 Garnished Wages Payable
2530 Union Dues Withheld
2535 SDI/SUI Withheld
2540 Employer FICA taxes Payable
2545 Employer FUTA & SUI Taxes Payable
2550 Employer Workers Compensation Tax Payable
2555 Employer Other Tax Payable
2560 Short Term Disability Payable
2565 Dental Withholding Payable
2570 401K Deduction
2572 Flex Dependent Care Withheld
2575 Group Term Life Payable
2580 Long Term Disability Payable
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