JEFFERSON MALL
LOUISVILLE, KENTUCKY
LEASE
TENANT: ACTIVE ANKLE SYSTEMS, INC.
UNIT: B316
TABLE OF CONTENTS
Article 1: Introductory Provisions. . . . . . . . . . . . . . . . . .
Section 1: Basic Lease Provisions. . . . . . . . . . . . . . . .
Section 2: Exhibits. . . . . . . . . . . . . . . . . . . . . . .
Section 3: General Definitions . . . . . . . . . . . . . . . . .
Article 2: PREMISES and Term of Lease . . . . . . . . . . . . . . . .
Section 1: Lease of PREMISES . . . . . . . . . . . . . . . . . .
Section 2: Term of Lease . . . . . . . . . . . . . . . . . . . .
Section 3: Lease Year. . . . . . . . . . . . . . . . . . . . . .
Section 4: Election to Terminate . . . . . . . . . . . . . . . .
Article 3: Construction of PREMISES . . . . . . . . . . . . . . . . .
Section 1: LANDLORD'S Work . . . . . . . . . . . . . . . . . . .
Section 2: TENANT'S Work . . . . . . . . . . . . . . . . . . . .
Section 3: Ready for Occupancy . . . . . . . . . . . . . . . . .
Article 4: Rent Commencement Date . . . . . . . . . . . . . . . . . .
Section 1: Rent Commencement Date. . . . . . . . . . . . . . . .
Section 2: Supplemental Lease and Short Form Lease . . . . . . .
Article 5: Rent . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1: Fixed Minimum Rent. . . . . . . . . . . . . . . . . .
Section 2: Percentage Rent . . . . . . . . . . . . . . . . . . .
Section 3: Additional Rent . . . . . . . . . . . . . . . . . . .
Section 4: Common Area Charge. . . . . . . . . . . . . . . . . .
Section 5: Merchants Association/Marketing Fund Charge . . . . .
Section 6: Property Insurance Charge . . . . . . . . . . . . . .
Section 7: Real Estate Taxes and Assessments . . . . . . . . . .
Section 8: Municipal, County, State or Federal Taxes . . . . . .
Section 9: Rental Taxes. . . . . . . . . . . . . . . . . . . . .
Section 10: Payments for Fractional Month . . . . . . . . . . . .
Article 6: Utilities and Energy Conversation. . . . . . . . . . . . .
Section 1: Utility Services and Charges. . . . . . . . . . . . .
Section 2: LANDLORD'S Right to Discontinue Services. . . . . . .
Section 3: Energy Conservation Methods and Compliance. . . . . .
Article 7: Common Areas . . . . . . . . . . . . . . . . . . . . . . .
Section 1: Development Plan. . . . . . . . . . . . . . . . . . .
Section 2: Use of Common Areas . . . . . . . . . . . . . . . . .
Section 3: Right to Close Common Areas . . . . . . . . . . . . .
Article 8: TENANT'S Covenants . . . . . . . . . . . . . . . . . . . .
Section 1: TENANT'S Use of PREMISES. . . . . . . . . . . . . . .
Section 2: TENANT'S Covenant to Operate. . . . . . . . . . . . .
Section 3: TENANT'S Covenants with Respect to Occupancy. . . . .
Article 9: Indemnity and Insurance. . . . . . . . . . . . . . . . . .
Section 1: Indemnification by TENANT . . . . . . . . . . . . . .
Section 2: Commercial General Liability Insurance. . . . . . . .
Section 3: Property Insurance. . . . . . . . . . . . . . . . . .
Section 4: Waiver of Subrogation . . . . . . . . . . . . . . . .
Section 5: Limit on LANDLORD'S Liability for Damage. . . . . . .
Article 10: Repairs and Alterations. . . . . . . . . . . . . . . . . .
Section 1: Repairs by LANDLORD . . . . . . . . . . . . . . . . .
Section 2: Repairs by TENANT . . . . . . . . . . . . . . . . . .
Section 3: Alterations or Improvements by TENANT . . . . . . . .
Section 4: Removal of Improvements . . . . . . . . . . . . . . .
Article 11: Assigning and Subletting . . . . . . . . . . . . . . . . .
Section 1: No Assigning or Subletting. . . . . . . . . . . . . .
Section 2: Change in Ownership . . . . . . . . . . . . . . . . .
Article 12: Default and Remedies . . . . . . . . . . . . . . . . . . .
Section 1: Events of Default . . . . . . . . . . . . . . . . . .
Section 2: LANDLORD'S Remedies . . . . . . . . . . . . . . . . .
Section 3: Remedy for Failure to Open or Operate . . . . . . . .
Section 4: Default in Other Centers. . . . . . . . . . . . . . .
Section 5: LANDLORD'S Right of Self-Help . . . . . . . . . . . .
Section 6: No Limitation of Rights and Remedies. . . . . . . . .
Section 7: Late Charge . . . . . . . . . . . . . . . . . . . . .
Section 8: Attorney's Fees . . . . . . . . . . . . . . . . . . .
Section 9: Waiver of Trial by Jury . . . . . . . . . . . . . . .
Article 13: Damage, Destruction and Restoration. . . . . . . . . . . .
Article 14: Eminent Domain . . . . . . . . . . . . . . . . . . . . . .
Article 1: All of PREMISES Taken . . . . . . . . . . . . . . . .
Article 2: Less Than Twenty-Five Percent (25%) of PREMISES Taken
Article 3: Twenty-Five Percent (25%) or More of PREMISES Taken .
Article 4: More Than Fifty Percent (50%) of the GLA of the Mall
Stores Taken. . . . . . . . . . . . . . . . . . . . .
Article 5: LANDLORD'S Restoration Obligation . . . . . . . . . .
Article 6: Ownership of Awards . . . . . . . . . . . . . . . . .
Article 15: Subordination and Attornment . . . . . . . . . . . . . . .
Article 16: Estoppel Certificates. . . . . . . . . . . . . . . . . . .
Article 17: Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . .
Article 18: Access to PREMISES . . . . . . . . . . . . . . . . . . . .
Article 19: Liability of LANDLORD. . . . . . . . . . . . . . . . . . .
Article 20: Liability of Executing Agent . . . . . . . . . . . . . . .
Article 21: Miscellaneous. . . . . . . . . . . . . . . . . . . . . . .
LEASE
THIS LEASE, made and entered into at Cleveland, Ohio as of this ______ day
of _________________, 19___, by and between JEFFERSON MALL COMPANY a(n) OHIO
LIMITED partnership, having an address for purposes hereof at 00000 Xxxxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxxx 00000, hereinafter referred to as "LANDLORD," and ACTIVE
ANKLE SYSTEMS, INC., a Kentucky corporation, having an address for purposes
hereof at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, hereinafter referred
to as "TENANT."
ARTICLE 1: INTRODUCTORY PROVISIONS
SECTION 1. BASIC LEASE PROVISIONS
The Following Basic Lease Provisions are an integral part of this lease,
are referred to in other Sections hereof, including, but without limitation, the
Sections identified below and are presented in this Section for the convenience
of the parties. Each reference in this lease to a Basic Lease Provision shall
be construed to incorporate all of the terms provided for under such provisions.
(a) Shopping Center: Jefferson Mall. (Article 2, Section 3[a])
(b) Unit Number: B316. (Article 2, Section 1)
(c) Approximate GLA of PREMISES: 1,686.28 square
feet. (Article 2, Section 1)
(d) Term of Lease: 8 Lease Years (plus a Partial
Lease Year, if any, prior to the first
Lease Year). (Article 2, Section 2)
(e) Rent Commencement Date: (Article 4, Section 1)
(f) Fixed Minimum Rent: $53,961.00 per Lease Year. (Article 5, Section 1)
$4,496.75 per month for
Lease Years 1 through 8;
subject to adjustment
pursuant to Article 5,
Section 1, for each
Department Store in excess
of 4 within the Shopping
Center.
(g) Percentage Rent: 8.00% of Gross Sales in (Article 5, Section 2)
excess of $674,512.50
("Minimum Basis of
Sales"), for Lease Years 1
through 8.
(h) Merchants
Association/ $2,107.92 per Lease Year, (Article 5, Section 5)
Marketing Fund $175.66 per month.
Charge
(i) Property Insurance $202.36 for Lease Years (Article 5, Section 7)
Charge: 1 through 4;
$303.54 for Lease Years
5 through 8.
(j) Other Sums Additional Rent (Article 5, Section 3)
Payable: Common Area Charge (Article 5, Section 4)
TENANT'S Share of Taxes (Article 5, Section 8)
Utility Services and Charges (Addendum No. 1)
(k) TENANT'S Trade
Name: ACTIVE ANKLE SYSTEMS (Article 8, Section 1)
(l) Permitted Use: (Article 8, Section 1)
TENANT shall use the PREMISES primarily for the display and
sale, at retail, of somatic supports (i.e., foot, ankle,
knee, shoulder, back, elbow, wrist and hand braces). As an
incidental use, TENANT may sell, at retail, items typically
sold at a medical supply store including rehabilitation
weights, crutches, tapes, adhesives, first aid kits and hot
and cold compresses. TENANT may use ten percent (10%) of
the Gross Leasable Area to sell nutritional fluids,
supplements or novelty items which include hats and shirts
bearing TENANT'S logo, or sell literature on nutrition,
athletics or sports medicine. TENANT expressly agrees NOT
to sell weights or exercise equipment typically associated
with traditional sporting good stores, or any pharmaceutical
items which must be dispensed by a licensed pharmacist.
(m) Trading Area: a radius of 5.00 miles. (Article 8, Section 2)
(n) Security Deposit: $ NONE (Article 19)
(o) Guarantor: NONE
SECTION 2. EXHIBITS
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The following Exhibits are attached to and are a part of this lease:
EXHIBIT A - A plan of the Enclosed Mall and the Mall Stores constructed
or to be constructed by LANDLORD showing the location and
approximate dimensions of the PREMISES.
EXHIBIT B - A plan showing the parcels presently comprising the Shopping
Center and the existing development thereof.
EXHIBIT C - A description of the work to be performed by LANDLORD (if
any) and TENANT with respect to the PREMISES.
EXHIBIT D - Electrical Energy Service Charge.
EXHIBIT E - VAC System Requirements (if applicable).
EXHIBIT F - Material Profile Sheet.
SECTION 3. GENERAL DEFINITIONS
For purposes of this lease, the following terms have the following
meanings:
(a) "Shopping Center" means the integrated retail shopping center
comprised of the Developer Parcel and the parcels of the Department Stores which
are depicted on Exhibit B, as the same may be changed from time to time by
addition thereto or subtraction therefrom, together with the improvements
constructed thereon from time to time.
(b) "Developer Parcel" means the parcel(s) within the Shopping Center
identified as such on Exhibit B, as the parcel(s) may be changed from time to
time by addition thereto or subtraction therefrom, in which, at any time in
question, LANDLORD has an ownership or a possessory interest.
(c) "PREMISES" means the space within the building improvements
constructed or to be constructed by LANDLORD on the Developer Parcel which is
identified by unit number in Article 1, Section 1(b) and outlined in red on
Exhibit A and shall consist of the space within the walls, floor and underside
of the drop ceiling required by Exhibit C. If the PREMISES does not have a drop
ceiling, the PREMISES shall extend vertically to where, in LANDLORD's judgment,
a drop ceiling would otherwise exist. "PREMISES" does not include the land
underlying a one level or first level unit, space below the structural slab of
an upper level unit, nor the space above the drop ceiling (or where the same
would exist in LANDLORD'S judgment); provided, however, TENANT shall have the
non-exclusive right to use a portion of the space above the drop ceiling (or
where the same would exist in LANDLORD'S judgment) for the location of TENANT'S
construction and equipment serving the PREMISES subject to the approval of
LANDLORD as to location and
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installation, such right to be in common with LANDLORD and all others to whom
LANDLORD has or may hereafter grant such rights.
(d) "Enclosed Mall" means the climate controlled pedestrian mall wholly or
partially located on the Developer Parcel and identified as such on Exhibit B,
as the same may be changed from time to time by addition thereto or subtraction
therefrom.
(e) "Mall Store(s)" means the individual store unit(s), other than a
Department Store(s), from time to time constructed on the Developer Parcel,
within the areas designated as Mall Stores on Exhibit B, as the same may be
changed from time to time by addition thereto or subtraction therefrom.
(f) "Department Store" means any owner or occupant of the Lazarus store,
the Sears store, the Dillard's store, the X.X. Xxxxxx store and the successors
and assigns, respectively, of the named stores, and any owner or occupant in the
Shopping Center carrying on business in not less than thirty-five thousand
(35,000) square feet of floor area.
(g) "Rent" means Fixed Minimum Rent, Percentage Rent and all items of
Additional rent.
(h) "Gross Leasable Area" or "GLA" means, with respect to the PREMISES and
all other leasable area, the number of square feet of floor area on all levels,
including any mezzanines or balconies, but excluding basements (if any), Common
Areas and Service Areas, measured from the exterior face of the exterior walls
and/or the exterior face of service corridor walls, the exterior lease line for
mall frontage and the center line of party walls. No deductions will be made
for columns, stairs, elevators or any interior construction or equipment.
Changes in the Gross Leasable Area will be deemed in effect on the first day of
the month following such change.
(i) "Common Areas" mean all malls, whether open or enclosed, mall
amenities, parking areas, sidewalks, walkways, roadways, driveways, auditoriums
and public meeting rooms, public restrooms, elevators, escalators, landscaping
and all other areas and facilities within the Shopping Center which are
available for use in common by occupants of the Shopping Center and their
customers and invitees.
(j) "Service Areas" mean all garbage and refuse disposal facilities,
Shopping Center offices, maintenance and storage rooms and buildings, loading
areas and all other areas and facilities which are used in the maintenance and
operation of the Shopping Center, whether or not located thereon.
(k) "Common Utilities" mean storm and sanitary sewer systems, including
storm water retention/detention facilities, lift stations and disposal plants,
water treatment and filtration facilities, water storage and distribution
facilities and other common utilities that serve the Shopping Center
8
directly, whether or not located thereon, which have not been installed by or
dedicated to a governmental authority or private utility.
ARTICLE 2: PREMISES AND TERM OF LEASE
SECTION 1. LEASE OF PREMISES
LANDLORD does hereby demise and lease the PREMISES to TENANT for the term,
at the Rent and upon the provisions and conditions herein set forth reserving,
however, unto LANDLORD, the exterior face of exterior walls and/or the exterior
face of service corridor walls, the roof and the use of the aforesaid areas and
the right to install, maintain, use repair and replace such pipes, duct work,
support columns, conduits, utility lines, tunneling, wires and the like in,
through, under or above the PREMISES, through ceiling plenum areas, column space
and in or beneath floor slabs, as may be reasonably necessary or advisable for
the servicing of the PREMISES and the servicing, alteration, addition, or
deletion of other portions of the Shopping Center.
SECTION 2. TERM OF LEASE
TO HAVE AND TO HOLD the PREMISES until TENANT upon the covenants and
agreements herein set forth for a term commencing on the first to occur of the
Rent Commencement Date (see Article 4, Section 1), the date a fully executed
copy of this lease is delivered to TENANT or the date upon which TENANT first
enters upon the PREMISES and continuing until the expiration of the number of
Lease Years specified in Article 1, Section 1(d), unless sooner terminated as
provided herein.
SECTION 3. LEASE YEAR
"Lease Year" means each successive period of twelve (12) consecutive full
calendar months from February 1 to January 31, inclusive, occurring after the
Rent Commencement Date. Any period between the Rent Commencement Date, if such
date is not February 1, and the next succeeding January 31 and any period
occurring between the termination of this lease and the next preceding February
1, shall constitute a "Partial Lease Year" for purposes of this lease. With
respect to a Partial Lease Year which precedes the first Lease Year, the
applicable dollar amounts and percentages for purposes of determining any item
of Rent shall be as provided in Article 1, Section 1 for the first Lease Year.
With respect to a Partial Lease Year ending on the termination of this lease,
the applicable dollar amounts and percentages for such purposes shall be as
provided in Article 1, Section 1 for the Lease Year commencing on the February 1
next preceding the date of termination.
SECTION 4. ELECTION TO TERMINATE
In the event that either the PREMISES is not Ready for Occupancy or the
Rent Commencement Date has not occurred within two (2) years following the date
hereof, this lease may
9
be terminated, at the election of LANDLORD by notice to TENANT, whereupon
both parties will be relieved of all obligations hereunder except that
LANDLORD will return to TENANT any Security Deposit (see Article 19) then
being retained by LANDLORD.
SECTION 3: CONSTRUCTION OF PREMISES
SECTION 1. XXXXXXXX'S WORK
LANDLORD shall, at LANDLORD'S own cost and expense, perform the work and
make the installations in the PREMISES which are variously set forth as work to
be done by LANDLORD in Exhibit C and/or Exhibit C-1 ("LANDLORD'S Work"). Except
as may be otherwise expressly provided in Exhibit C and/or Exhibit C-1, LANDLORD
shall have no responsibility for (a) the removal, modification or upgrading of
any existing construction or equipment to accommodate TENANT'S occupancy of the
PREMISES, (b) the undertaking of any alterations or additional improvements, of
(c) the installation of any equipment.
SECTION 2. TENANT'S WORK
With the exception of the obligations, if any, set forth in Exhibit C
and/or C-1 as LANDLORD'S Work, TENANT will, at its own cost and expense: perform
all work and complete all installations as required by Exhibit C and/or C-1; and
fully improve the PREMISES with all furniture, fixtures, equipment and other
items of personal property necessary for the completion of the PREMISES and the
proper operation of TENANT'S business ("TENANT'S Work").
SECTION 3. READY FOR OCCUPANCY
The PREMISES shall be deemed "Ready for Occupancy" under the terms of this
lease if LANDLORD has substantially completed LANDLORD'S Work to the extent the
same can be accomplished prior to and independently of TENANT'S Work. The
failure by TENANT to give notice within thirty (30) calendar days of its taking
possession of the PREMISES specifying in detail those items of LANDLORD'S Work
which are not then substantially completed shall be deemed conclusive that
TENANT has accepted the PREMISES with all items of LANDLORD'S Work substantially
completed. In the event a dispute occurs as to whether or not LANDLORD'S Work
has been substantially completed as aforesaid, the certification of LANDLORD'S
architect that LANDLORD'S Work is substantially complete shall be conclusive and
binding upon the parties. Following TENANT'S taking position of the PREMISES
and its completion of any TENANT'S Work necessary to permit LANDLORD to complete
LANDLORD'S Work, LANDLORD will carry forward LANDLORD'S Work to completion.
LANDLORD may, upon request of TENANT, make the PREMISES available to TENANT
for the commencement of TENANT'S Work (at TENANT'S sole risk) prior to the date
LANDLORD has substantially completed LANDLORD'S Work. In such event, LANDLORD
shall issue to TENANT a letter of authorization for access to the PREMISES, the
date of which shall be
10
deemed to be TENANT'S Ready for Occupancy date notwithstanding the fact that
LANDLORD may revoke TENANT'S right to continue TENANT'S Work if LANDLORD
determines that TENANT'S Work shall interfere with LANDLORD'S Work. Under no
circumstances shall LANDLORD be liable to TENANT in damages or otherwise for
a delay in delivering the PREMISES to TENANT occasioned by the holding over
or retention of possession by any prior occupant or for any other reason.
ARTICLE 4: RENT COMMENCEMENT DATE
SECTION 1. RENT COMMENCEMENT DATE
As used in this lease, the term "Rent Commencement Date" shall mean the
earlier of:
(a) the date specified in Article 1, Section 1(e); or
(b) the date on which TENANT shall open the PREMISES for business to the
public.
SECTION 2. SUPPLEMENTAL LEASE AND SHORT FORM LEASE
The parties will promptly, upon request of LANDLORD, enter into a
Supplemental Lease prepared by LANDLORD stipulating the Rent Commencement Date
and the expiration of the term of this lease, once the same have been
determined. The parties agree that this lease shall not be recorded, but upon
written request of LANDLORD or TENANT, a Short Form Lease prepared by LANDLORD
shall be promptly executed by both parties. Any costs of recording either the
Supplemental Lease or the Short Form Lease shall be borne by the party recording
same.
ARTICLE 5: RENT
SECTION 1. FIXED MINIMUM RENT
(a) TENANT covenants and agrees to pay to LANDLORD, without deduction or
setoff whatsoever, for each Lease Year and any Partial Lease Year, as "Fixed
Minimum Rent," the amount(s) set forth in Article 1, Section 1(f) (or a
proportionate part thereof for a Partial Lease Year), together with any increase
in the Fixed Minimum Rent provided for elsewhere in this lease, said amount(s)
to be due and payable in monthly installments in advance on the first day of
each and every calendar month. XXXXXX agrees at no time to pay the monthly
Fixed Minimum Rent More than one (1) month in advance of its due date.
(b) If, at any time during the term of this lease, the Shopping Center is
expanded by the addition of one or More Department Stores so that the number of
Department Stores exceeds the number set forth in Article 1, Section 1(f) TENANT
agrees that theh Fixed Minimum Rent then being paid and any increases set forth
in Article 1, Section 1(f) shall automatically be increased by ten percent (10%)
percent for each such additional Department Store upon the date each such
11
additional Department Store first opens for business and LANDLORD agrees that
the "Minimum Basis of Sales" set forth in Article 1, Section 1(g), shall
likewise be increased proportionally.
SECTION 2. PERCENTAGE RENT
In addition to the Fixed Minimum Rent, TENANT covenants and agrees to pay
to LANDLORD, without deduction or setoff whatsoever, for each Lease Year and any
Partial Lease Year, "Percentage Rent" in an amount equal to the percentage set
forth in Article 1, Section 1(g) of Gross Sales during such Lease Year (or
Partial Lease Year) in, upon and from the PREMISES in excess of the Minimum
Basis of Sales set forth in Article 1, Section 1(g) (or a proportionate part
thereof for a Partial Lease Year based upon the number of days in the Partial
Lease Year). In the event the fixed Minimum Rent for any Lease Year or Partial
Lease Year is reduced or abated for any reason, the Minimum Basis of Sales for
determining Percentage Rent will be reduced proportionately for so long as such
reduction or abatement of Fixed Minimum Rent shall continue.
(a) SALES STATEMENTS AND PAYMENT OF PERCENTAGE RENT. On or before the
10th day of each calendar month, TENANT will furnish to LANDLORD a written
statement of Gross Sales for the preceding calendar month, such statement to be
in form and style and to contain such details as LANDLORD may reasonably
determine. On or before the tenth (10th) day of the seventh (7th) month of each
Lease Year, TENANT shall pay to LANDLORD as Percentage Rent, a sum equal to the
percentage hereinbefore specified of TENANT'S Gross Sales for the first six (6)
months of such Lease Year in excess of one-half (1/2) of the Minimum Basis of
Sales. On or before the last day of the month following the close of each Lease
Year (or Partial Lease Year), TENANT will furnish to LANDLORD a statement,
certified by either a Certified Public Accountant employed by TENANT or by an
officer of TENANT, of Gross Sales for the preceding Lease Year (or Partial Lease
Year) and will tender therewith the balance of Percentage Rent due, if any, for
such Lease Year (or Partial Lease Year). If the Percentage Rent installments
paid by TENANT during any Lease Year (or Partial Lease Year) exceed the
Percentage Rent due for such Lease Year (or Partial Lease Year), LANDLORD will
credit the amount of such overpayment, first to the payment of Rent due and
unpaid, and the residue, if any, shall be applied to the Percentage Rent
payments next due.
(b) GROSS SALES. "Gross Sales" as used in this lease shall mean the
aggregate gross amount of all sales of merchandise transacted or made and all
charges for services performed by TENANT or any persons, firms or corporations
on its behalf, or any subtenants, licensees or concessionaires of TENANT, from,
in or upon the PREMISES, including orders accepted by means of electronic,
telephonic, video, computer or other technology based systems whether existing
now or developed in the future, orders taken upon the PREMISES for delivery from
sources other than the PREMISES, and whether wholesale or retail, and whether
cash or credit, including the amount of all consideration other than money
received for any of the foregoing including, specifically, but not limited to,
the amount of credit allowed for any trade-ins, but less refunds for merchandise
returned for which cash has been refunded or credit given provided the sales
price was originally included in Gross Sales. The amount of any sales and
excise taxes, however imposed, computed or paid for sales from, in or upon the
PREMISES shall, to the extent a specific record of the amount
12
of such tax is made at the time of each sale and the amount thereof is
expressly charged to the customer and included in sales, be deducted when
determining Gross Sales. Merchandise transferred from the PREMISES to another
store of TENANT or merchandise returned for credit to factories or jobbers
shall not be included in determining Gross Sales. No deduction shall be
permitted for uncollected or uncollectible credit or charge accounts.
(c) BOOKS OF ACCOUNT AND XXXXXXXX'S RIGHT TO AUDIT. TENANT agrees to
prepare in accordance with generally accepted accounting practice and to keep on
the PREMISES or at its principal accounting office, accurate books of account
and records of Gross Sales, including, but not limited to, all federal, state
and local tax returns relating to Gross Sales, daily cash register and point of
sale tapes, retained detail continuous tapes, sales slips, daily sales reports,
cash receipts, the original records of all orders accepted by means of
electronic, telephonic, video, computer or other technology based systems and
sales journals, disbursement journals, general xxxxxx(s), chart of accounts,
bank statements including deposit slips, financial statements, and other support
documents related to Gross Sales. All books and records, including tax returns,
with respect to Gross Sales for any Lease Year or Partial Lease Year shall be
kept by TENANT and open to examination or audit by LANDLORD for a period of four
(4) years following the close of such Lease Year or Partial Lease Year. In the
event TENANT is delinquent in furnishing LANDLORD monthly Gross Sales statements
for two (2) consecutive months, LANDLORD may conduct an examination or audit of
TENANT'S books and records with the cost thereof, together with any charges
occasioned thereby, to be the obligation of TENANT and to be paid to LANDLORD
upon demand. In any other case where LANDLORD elects to examine or audit
TENANT'S books and records and such examination or audit reveals that TENANT has
understated Gross Sales by one percent (1%) or more, TENANT agrees to pay to
LANDLORD the reasonable cost of such examination or audit. In the event the
examination or audit discloses that TENANT has understated Gross Sales by three
percent (3%) or more, LANDLORD may, in addition to the foregoing rights,
terminate this lease. Any additional Percentage Rent found due and owing as a
result of the examination or audit as well as a late charge (calculated as
described in Article 12, Section 7) from the date such sums were due LANDLORD
shall be immediately due and payable. If an examination or audit determines
TENANT has paid excess Percentage Rent, the excess, less the cost of such
examination or audit, shall be refunded by LANDLORD. In connection with an
examination or audit, LANDLORD shall have the right to inspect the records of
sales from any other store operated by TENANT, but only if such examination is
necessary to ascertain Gross Sales from the PREMISES.
SECTION 3. ADDITIONAL RENT
In addition to the Fixed Minimum Rent and Percentage Rent, TENANT covenants
and agrees to pay to LANDLORD, as "Additional Rent," any and all sums of money
or charges to be paid by TENANT, whether designated Additional Rent or not, and
such amounts, if not paid when due, shall be collectible with the next
installment of Fixed Minimum Rent thereafter falling due and shall be subject to
all provisions of this lease and of law as to default in the payment of Rent;
provided, however, nothing herein shall be deemed to excuse or delay the
obligation of TENANT to pay any amount of money or charge at the time the same
becomes due under the terms of this lease.
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SECTION 4. COMMON AREA CHARGE
(a) From and after the Rent Commencement Date, TENANT agrees to pay to
LANDLORD as its "Common Area Charge," a proportionate share of the total cost
and expense of (i) operating and maintaining the Common Areas on the
Developer Parcel; (ii) operating and maintaining the Service Areas; (iii)
operating and maintaining Shopping Center signs, whether on or off the
Developer Parcel; (iv) operating and maintaining Common Utilities; (v)
providing security for Common Areas on the Developer Parcel and all Service
Areas; and (vi) providing on-and-off-site traffic control. Such cost and
expense shall include, but not limited to: costs of management, operating,
cleaning, maintaining, repairing, substituting and replacing Common Area,
Service Area and Common Utility improvements (except to the extent proceeds
of insurance or condemnation awards are available therefor); alterations or
improvements required by governmental laws, rules or regulations not
promulgated or applicable when originally constructed or installed; lighting,
heating, ventilating and air conditioning; snow removal; striping, painting,
replanting and maintaining landscaping; supplying music to the Enclosed Mall;
all costs and expenses of providing trash removal, transportation, storage or
processing services; providing commercial general liability, property damage,
fire and extended coverage insurance and other insurance as LANDLORD deems
appropriate; obtaining and providing public transportation or shuttle bus
service to transport customers or employees on or off the Shopping Center;
total compensation and benefits (including premiums for workers' compensation
and other insurance) paid to or on behalf of employees; personal property
taxes; supplies; fire protection and fire hydrant charges; water, sewer and
runoff charges or fees; utility charges; license and permit fees; parking
area surcharges or levies; reasonable depreciation of equipment used in
operating and maintaining the Common Areas and Service Areas including an
energy management system, if any, and rent paid for the leasing of any such
equipment; and, for LANDLORD'S administrative costs with respect thereto, an
amount equal to fifteen percent (15%) of the total cost and expense of all
the foregoing items. To the extent that any utility services used in
connection with Common Areas and Service Areas shall not be separately
metered and billed by the local serving utility, LANDLORD shall provide
submeters for such service and shall include with the foregoing, and amounts)
determined by applying to the metered usage, the rate(s) that would be
applicable if the local serving utility were providing direct service.
TENANT'S Common Area Charge for each accounting period (or partial accounting
period) shall be determined by multiplying LANDLORD'S total costs (less the
contributions therefor made by occupants of the Mall Stores, if any, which do
not front on the Enclosed Mall) by the ratio of the square feet of Gross
Leasable Area within the PREMISES to the total square feet of Gross Leasable
Area within the Mall Stores fronting on the Enclosed Mall which are from time
to time occupied and open for business.
(b) TENANT'S Common Area Charge shall be paid in monthly installments on
the first day of each month in an amount to be estimated annually, by LANDLORD.
Following the close of each of LANDLORD'S annual accounting periods, LANDLORD
will furnish to TENANT a statement of the actual amount of TENANT'S Common Area
Charge for such period. If the actual amount of TENANT'S Common Area Charge is
less than the total amount theretofore paid by TENANT for such period, such
excess shall be credited, first, to the payment of Rent due and unpaid, and the
residue, if any, shall be credited against the next installment due from TENANT
to
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LANDLORD under this Section. If the actual amount of TENANT'S Common Area
Charge exceeds the total amount paid by TENANT for such period, TENANT will
pay to LANDLORD, within fifteen (15) calendar days following its receipt of
LANDLORD'S statement, the amount shown as due thereon.
SECTION 5. MERCHANTS ASSOCIATION/MARKETING FUND CHARGE
(a) From and after the Rent Commencement Date, TENANT agrees to pay to
LANDLORD on the first day of each month, the amount specified in Article 1,
Section 1(h), toward the expense of advertising and promotional activities for
the benefit of the Shopping Center. LANDLORD has established (or may establish)
either a Merchants Association or Marketing Fund in connection with such
advertising and promotional activities. LANDLORD may, at any time, in its sole
discretion, elect to substitute a Merchants Association for an existing
Marketing Fund or a Marketing Fund for an existing Merchants Association. If a
Marketing Fund is utilized, funds for advertising and promotional activities
shall be expended by or under the direction of LANDLORD or its designated
representative. If a Merchants Association approved by LANDLORD shall be in
existence, funds collected by LANDLORD for advertising and promotional
activities shall be delivered to such Merchants Association and LANDLORD shall
have no obligation to account (except to said Merchants Association) for any
such funds. TENANT agrees to join, maintain membership in and cooperate with
any such Merchants Association. Notwithstanding the fact that all or a portion
of the compensation and benefits of LANDLORD'S designated representative who
shall oversee advertising and promotional activities, shall be paid from either
the Marketing Fund or the treasury of the Merchants Association, such
representative shall be under the exclusive control and supervision of LANDLORD
who shall have the sole authority to employ, discharge and determine the annual
compensation of such representative.
(b) The amount payable in Subsection (a) above and in the Addendum to
Article 8, Section 3(g) shall be adjusted at the end of the first Lease Year and
annually thereafter by the lesser of five percent (5%) of the amount payable in
the immediately preceding Lease Year or a percentage equal to the percentage
increase, if any, in the Consumer Price Index for All Urban Consumers, U.S. City
Average, All Items (1982-84=100) published by the Bureau of Labor Statistics of
the United States Department of Labor for the month of February of each Lease
Year over the Consumer Price Index for the immediately preceding adjustment date
(or the Consumer Price Index published for the month immediately prior to the
date of this lease in the case of the first such adjustment). If during the
term of this lease the Bureau of Labor Statistics, United States Department of
Labor, ceases to maintain said Consumer Price Index, such other index or
standard which in LANDLORD'S judgment will most nearly accomplish the aim and
purpose of the Consumer Price Index and the use thereof by the parties hereto
shall be used in determining the amount of any such adjustment.
SECTION 7. PROPERTY INSURANCE CHARGE
TENANT agrees to pay to LANDLORD annually, in advance, for each Lease Year
and a proportionate part thereof for any Partial Lease Year, the amount
specified in Article 1, Section 1(j),
15
as a contribution toward LANDLORD'S cost of carrying Property Insurance for
the PREMISES. Such coverage shall be for those items set forth in Article 9,
Section 3, and shall specifically exclude TENANT'S personal property. If,
due to increases in LANDLORD'S premiums, the contribution to be made by
TENANT is less than TENANT'S share of LANDLORD'S cost of maintaining Property
Insurance for the Mall Stores for any Lease Year, TENANT will pay to LANDLORD
in addition to and at the time such increase totals ten percent (10%) or more
of the amount provided under Article 1, Section 1(j), the total amount of
such deficiency within fifteen (15) calendar days following its receipt of
LANDLORD'S statement. For purposes hereof, TENANT'S share means the ratio
determined by dividing the square feet of Gross Leasable Area within the
PREMISES by the total square feet of Gross Leasable Area within the Mall
Stores covered by LANDLORD'S policies set forth in Article 9, Section 3.
SECTION 8. REAL ESTATE TAXES AND ASSESSMENTS
(a) For the purpose of determining the amount of Real Estate Taxes to be
paid by TENANT for any calendar year or part thereof during the term of this
lease, the following definitions shall apply:
(1) "Real Estate Taxes" mean (i) all general or ad valorem real estate
taxes; (ii) assessments, both general and special, for public improvements or
benefits, which shall, during the term hereof, be levied or assessed (and in the
case of any prior assessments, the installments thereof which shall be payable
during the term hereof) against or upon the land, buildings and other
improvements within the Tax Parcel; provided, however, that with respect to any
assessments levied against or upon the Tax Parcel and the improvements thereon
which under the laws then in force may be paid in installments, there will be
included within Real Estate Taxes with respect to any calendar year only the
installment(s) of such assessment for such calendar year; and (iii) all costs
and expenses paid or incurred by LANDLORD in connection with efforts to reduce
or prevent increases in the amount of items (i) and (ii). The term Real Estate
Taxes does not include any income, gross income, franchise, personal property,
devolution, estate, inheritance or gift taxes.
(2) "Tax Parcel" means the Developer Parcel and any additional land owned
by LANDLORD improved for use as part of the Shopping Center, but excluding any
portions thereof which are (i) separately assessed and taxed or are the subject
of records maintained by the taxing authority from which the amount of tax
fairly allocable to such portions may be determined; and/or (ii) billed to any
entity other than LANDLORD or paid directly by an entity other than LANDLORD
even though billed to LANDLORD.
(3) "TENANT'S Share of Taxes" means a proportionate share of all Real
Estate Taxes which may be levied or assessed against the Tax Parcel determined
by multiplying the amount of such Real Estate Taxes by a fraction of which the
numerator shall be the Gross Leasable Area of the PREMISES and the denominator
shall be the total square feet of Gross Leasable Area of the buildings within
the Tax Parcel which are from time to time occupied and open for business. For
the purpose of this Section, the Gross Leasable Area in effect for any calendar
year (or partial
16
calendar year) for the buildings within the Tax Parcel shall be the average
of the Gross Leasable Area occupied and open on the first day of each
calendar month in such calendar year (or partial calendar year).
(b) From and after the Rent Commencement Date, TENANT agrees to pay
TENANT'S Share of Taxes to LANDLORD in monthly installments, in advance, on the
first day of each month, in installment amounts to be estimated by LANDLORD.
After tax bills have been issued which assess the Tax Parcel on the basis that
the buildings and improvements thereon are fully completed, LANDLORD'S estimates
of monthly installment amounts shall be based on the most recent tax bills. If
the actual amount of TENANT'S Share of Taxes with respect to any calendar year,
once determined, is less than the total amount theretofore paid by TENANT for
such period, such excess shall be credited, first to the payment of Rent due and
unpaid, and the residue, if any, shall be credited against the next installment
due from TENANT to LANDLORD under this Section. If the actual amount of
TENANT'S Share of Taxes exceeds the total amount paid by TENANT for such period.
TENANT will pay to LANDLORD, within fifteen (15) calendar days following its
receipt of LANDLORD'S statement, the amount shown as due thereon.
SECTION 9. MUNICIPAL, COUNTY, STATE OR FEDERAL TAXES
TENANT agrees to pay, before delinquency, all municipal, county, state or
federal taxes levied, assessed or imposed upon its business operations, its
leasehold interest and any fixtures, furnishings, equipment, stock-in-trade or
other personal property of any kind owned, installed or used in or on the
PREMISES.
SECTION 10. RENTAL TAXES
Should any governmental taxing authority acting under any present or future
law, ordinance, or regulation, levy, assess, or impose a tax, excise and/or
assessment (other than net income or franchise tax) upon or against this lease,
the execution hereof and/or the Rent payable by TENANT to LANDLORD, either by
way of substitution for or in addition to any existing tax on land and buildings
or otherwise, and whether or not evidenced by documentary stamps or the like,
TENANT agrees to be responsible for and to pay such tax, excise and/or
assessment, or to reimburse LANDLORD for the amount thereof, as the case may be.
SECTION 12. PAYMENTS FOR FRACTIONAL MONTH
If the Rent Commencement Date is other than the first day of a calendar
month, or if the day on which this lease terminates is other than the last day
of a calendar month, then TENANT will pay to LANDLORD Fixed Minimum Rent and any
other items of Additional rent which are calculated on a monthly basis prorated
on a per diem basis.
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ARTICLE 6: UTILITIES AND ENERGY CONSERVATION
SECTION 1. UTILITY SERVICES AND CHARGES
The type of utility services and the manner of payment with respect to all
utilities to be utilized in the PREMISES are more fully set forth in Addendum
No. 1, attached hereto and made a part hereof.
SECTION 2. LANDLORD'S RIGHT TO DISCONTINUE SERVICES
In the event LANDLORD shall be providing any utility services as set forth
in Addendum No. 1, LANDLORD may discontinue furnishing such services if the
charges therefor are not paid as provided in Addendum No. 1 upon five (5)
calendar days written notice of its intention to do so and no resulting
discontinuation shall be deemed an eviction or render LANDLORD liable to TENANT,
in damages or otherwise, if the furnishing of any utility services to the
PREMISES shall be interrupted or curtailed because of necessary repairs or
improvements to LANDLORD'S system, damage to or destruction of any of LANDLORD'S
equipment or disruption or curtailment of primary sources of supply. No
interruption or termination of such services shall release TENANT from the
performance of its obligations under this lease, nor shall it constitute a
constructive eviction or permit any abatement or diminution of Rent. LANDLORD
shall have the right at any time to cease to furnish utility services without
any responsibility to TENANT except to connect such service facilities with such
other sources of supply as may be available. If LANDLORD shall elect to
discontinue furnishings any one or more of such utility services, TENANT shall
thereafter pay charges for such service directly to the serving utility.
SECTION 3. ENERGY CONSERVATION METHODS AND COMPLIANCE
TENANT agrees, at its cost and expense, to cooperate with LANDLORD'S
reasonable directives to reduce energy consumption on the PREMISES. This shall
include, but not limited to, TENANT'S express agreement to pay to LANDLORD the
cost of acquisition and installation of any existing or new central electrical
demand control panel, and the repair, replacement and maintenance of such
equipment as may become necessary in LANDLORD'S discretion throughout the term
of this lease. In the event mandatory energy conservation is ordered by any
governmental authority or if LANDLORD elects voluntarily to cooperate in energy
conservation at the request of any governmental authority, including, but
without limitation, a reduction of operating hours or lighting usage, TENANT
agrees to observe such requirements so imposed and acknowledges that any
reduction or conversation required shall not entitle TENANT to any abatement of
Rent or damages for any injury or inconvenience occasioned thereby, nor shall it
constitute a constructive eviction.
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ARTICLE 7: COMMON AREAS
SECTION 1. DEVELOPMENT PLAN
It is understood that Exhibit B indicates, in general, the present
development of the Shopping Center. The same does not constitute a
representation that the Shopping Center will remain as depicted thereon.
LANDLORD, in operating the improvements on the Developer Parcel, and any
Department Store, in operating the improvements on its Parcel, may each make
such departures from the plan as such party, at its sole discretion, may from
time to time find proper and LANDLORD may, at is discretion, change the location
of other tenants and the nature of any occupancy of any Department Store or Mall
Store at any time. TENANT also understands and agrees that LANDLORD and anyone
claiming by, through or under LANDLORD, and any Department Store may, from time
to time, undertake alterations of, additions to, or deletions from the buildings
and/or Common Areas and/or Food Court or Food Court Areas on the Developer
Parcel, the Parcels of the Department Stores and any lands added thereto,
construct additional buildings or improvements and place permanent kiosks
thereon and make alterations thereto, relocate and/or eliminate mall entrances,
build additional stories on any buildings, construct a Food Court or Food Court
Area, construct multi-story, elevated or underground parking facilities, and
construct roofs, walls and any other improvements over, to or in connection with
any part of the Shopping Center and mall areas in order to enclose or expand
same.
SECTION 2. USE OF COMMON AREAS
LANDLORD grants to TENANT and its employees, agents, customers, business
visitors, business guests, licensees and invitees during the term of this lease,
but subject to Sections 1 and 3 of this Article 7, the non-exclusive use for
pedestrian and vehicular traffic, as the case may be, of the Common Areas. Such
use shall be in common with LANDLORD, other occupants of the Shopping Center and
all others to whom LANDLORD has or may hereafter grant rights to use the same
and shall be subject to such reasonable rules and regulations as LANDLORD may
from time to time adopt governing the same. TENANT acknowledges and agrees that
LANDLORD shall, at all times, have full control, management and direction of the
Common Areas, including the right to utilize portions of the Common Areas for
carnival type shows, rides, displays, product shows, the location of kiosks or
such other uses which, in LANDLORD'S sole discretion, tend to benefit the
customers of the Shopping Center. LANDLORD further reserves the right at any
time to change the layout of the Common Areas, including the right to add to or
subtract from their shape and size as well as to alter their location.
SECTION 3. RIGHT TO CLOSE COMMON AREAS
LANDLORD shall have the right to close all or any portions of the Common
Areas to such extent as may, in the opinion of LANDLORD'S counsel, be legally
sufficient to prevent a dedication thereof or the accrual of any rights to
any person or to the public therein and to close temporarily, if necessary,
any part of the Common Areas in order to discourage non-customer parking, to
permit
19
alterations of existing buildings and other improvements or the construction
of additional buildings and other improvements, including underground or
multi-level parking facilities.
ARTICLE 8: TENANT'S COVENANTS
SECTION 1. TENANT'S USE OF PREMISES
TENANT agrees to: (1) operate its business in the PREMISES under the
trade name specified in Article 1, Section 1(l); and (ii) use the PREMISES
solely for the permitted use specified in Article 1, Section 1(m) and for no
other business or purpose. TENANT further agrees not to conduct catalog
sales in or from the PREMISES except of merchandise which TENANT is permitted
to sell "over-the-counter" pursuant to the provisions of this Article 8,
Section 1. TENANT recognizes that the specific limited use prescribed herein
is a material consideration to LANDLORD in order that the Shopping Center
will maintain an appropriate tenant mix so as to produce the maximum Gross
Sales possible for all tenants and that the continued operation of a full
service regional retail development will be assured. If TENANT'S business in
the PREMISES is to be conducted pursuant to a franchise agreement, the
existence and continuation of such franchise agreement is a material
consideration to LANDLORD in entering into this lease and if such franchise
agreement is terminated, LANDLORD shall be entitled to treat such event as an
event of default and elect any of the remedies provided in Article 12.
SECTION 2. TENANT'S COVENANT TO OPERATE
(a) HOURS AND MANNER OF OPERATION. TENANT agrees to complete TENANT'S
work and open the PREMISES for business to the public fully fixtured, stocked
and staffed on the Rent Commencement Date, and thereafter throughout the term of
this lease, to continuously operate in one hundred percent (100%) of the space
within the PREMISES the business prescribed in Article 1, Section 1(m) on all
business days during the hours of 10:00 a.m. until 9:30 p.m., Monday through
Saturday and 12:00 noon until 5:30 p.m. on Sundays or such other hours as
LANDLORD shall establish, from time to time, as the standard Shopping Center
business hours. TENANT agrees it will not open earlier or close later than the
hours established by LANDLORD as the standard Shopping Center business hours
except that TENANT may open at 9:00 a.m. for the convenience of pedestrians in
the Enclosed Mall provided that LANDLORD has opened the Enclosed Mall to
pedestrian traffic at such earlier hour and TENANT agrees to observe such hours
as LANDLORD may prescribe during special events, seasonal shopping periods, or
such other times that LANDLORD determines that the standard hours should be
modified. In operating its business, TENANT agrees to carry sufficient
merchandise in the PREMISES at all times, but to warehouse, store and/or stock
only such quantities of merchandise as are reasonably required to facilitate
sales from the PREMISES. TENANT agrees to fully and adequately staff the
PREMISES with sufficient sales personnel and to use for office, clerical or
other non-selling purposes only such space in the PREMISES as is reasonably
required for TENANT'S business therein (not including any other business of
TENANT in locations other than the PREMISES). TENANT recognizes that the
covenants of TENANT in this Article 8, Section 2 are a material consideration
to LANDLORD in
20
order that TENANT might produce the maximum Gross Sales possible from the
PREMISES during the lease term.
(b) OTHER OPERATIONS WITHIN TRADING AREA. TENANT agrees that so long as
this lease remains in effect, TENANT, its parent corporation, subsidiaries and
affiliated corporations (and any officer, director or shareholder owning capital
stock of TENANT if TENANT be a corporation) and any person, firm, corporation or
other entity who or which controls or is controlled by TENANT will not, either
within the Shopping Center (except under lease from LANDLORD) or within the
Trading Area specified in Article 1, Section 1(n) (measured from the closest
perimeter of the Shopping Center), directly or indirectly, own, operate or be
financially interested in, either itself or with others, a business like or
similar to the business authorized to be conducted under Article 8, Section 1
hereof. Due to the difficulty in determining the extent to which LANDLORD would
be damaged by reason of loss of Percentage Rent or otherwise in the event that
TENANT should breach the foreging covenant, TENANT agrees that LANDLORD shall,
in addition to any other remedies otherwise available to it, be entitled to add
seventy-five percent (75%) of the Gross Sales (as defined in this lease) from
any such location establishes in violation of the foregoing covenant to the
Gross Sales from the PREMISES for the determination of Percentage Rent due under
Article 5, Section 2 hereof. TENANT agrees to furnish to LANDLORD an annual
certified statement of Gross Sales from any such location(s) in accordance with
Article 5, Section 2.
SECTION 3. TENANT'S COVENANTS WITH RESPECT TO OCCUPANCY
(a) NATURE OF USE. XXXXXX agrees to use and occupy the PREMISES in a
careful, safe and proper manner, to commit no waste, and to keep the PREMISES in
a clean and safe condition in accordance with this lease and in compliance with
all laws, regulations, orders, ordinances and the lawful directions of proper
public officers. TENANT'S use of the PREMISES shall be consistent with present
standards of good shopping center operations and TENANT agrees not to permit
solicitations, demonstrations, itinerant vending or any other activities
inconsistent with such standards.
(b) EXTRA HAZARDOUS ACTIVITY. TENANT agrees that if anything done,
omitted to be done, or keep upon or about the PREMISES shall cause the rate of
fire or other insurance on the PREMISES or any portion of the Shopping Center to
be increased beyond the minimum rate which would be applicable to the PREMISES
for the use permitted herein, TENANT will pay the amount of such increase to
LANDLORD upon demand.
(c) TRASH REMOVAL. TENANT will not permit the accumulation of rubbish,
trash, garbage or other refuse in or around the PREMISES and will either remove
same at TENANT'S expense or, if LANDLORD provides trash compactor service,
utilize the service as LANDLORD directs. In the event TENANT fails to remove
any accumulation of rubbish immediately upon notice to do so, LANDLORD shall
have the rights provided Article 12, Section 5.
21
(d) STOREFRONT SIGN. TENANT agrees, at its expense, to maintain in its
storefront sign in a good state of repair. TENANT further agrees to remove such
storefront sign upon the expiration or termination of this lease and to repair
any damage which is caused by the erection, maintenance or removal of same.
(e) ILLUMINATION OF SIGNS AND DISPLAYS. TENANT agrees to keep its
storefront sign and the front ten feet (10') within the interior of the
PREMISES, including showing or display windows, if any, illuminated until thirty
(30) minutes after the close of each business day. TENANT further agrees to
maintain a night light within the PREMISES at all times the same is not open for
business.
(f) TENANT'S ADVERTISING WITHIN PREMISES. As to any position of the
PREMISES which has an enclosed storefront, TENANT will not (i) affix any signs,
placards, banners, pennants or advertising matter of any kind on the surface of
any display window or customer door; (ii) place or suspend any signs, placards,
banners, pennants or advertising matter of any kind, except "readers," within
three feet (3') in depth in which case the rear wall of the display area may be
utilized; nor (iii) place or suspend from the ceiling and/or walls of any
vestibule area, any signs, placards, banners, pennants or advertising matter of
any kind except that TENANT may place one (1) pedestal sign not to exceed six
square feet (6) in area within any such vestibule so long as the same shall be
at least five feet (5') behind the lease line. As to any portion of the
PREMISES which has an open storefront, TENANT will not (i) place any
merchandise, signs, placards or advertising matter of any kind within five feet
(5') of the lease line; nor (ii) suspend from the ceiling or walls of the
PREMISES within five feet (5') of the lease line any pennants, advertising
matter, banners or signs of any type except departmental identification signs
and motif or decor items which have received LANDLORD'S prior approval. All
signs, placards, banners, pennants or other advertising matter permitted
hereunder shall be professionally prepared. LANDLORD may, without notice and
without any liability therefor, enter the PREMISES and remove any items
installed or maintained by TENANT in violation of the provisions of this
Article 8, Section 3(f).
(g) ADVERTISING IN MEDIA. AMENDED SEE ADDENDUM
(h) CHARACTER OF OPERATIONS. In order to establish and preserve the
character of the Shopping Center as a high quality retail development, TENANT
will not conduct any type of auction, fire, bankruptcy, close out, distress,
liquidation or going-out-of-business sales, nor conduct its business in the
manner which is commonly known and accepted in the retail trade as a "wholesale
store" or "outlet store" or "surplus store;" provided, however, that this
provision shall not preclude periodic seasonal, promotional or clearance sales
nor be deemed to give LANDLORD the right to approve or disapprove the price at
which TENANT will offer its merchandise for sale.
(i) ADDITIONAL GENERAL COVENANTS OF TENANT. TENANT will (i) keep the
inside and outside of all glass in the doors and windows of the PREMISES clean;
(ii) not place or maintain any merchandise, sign or other thing of any kind in
the vestibule or entry of the PREMISES or on the malls or walkways adjacent
thereto or elsewhere on the exterior of the PREMISES (except signs permitted
under Article 8, Sections 3[d] and 3[f] hereof); (iii) maintain the PREMISES in
a clean,
22
orderly and sanitary condition and free of insects, rodents, vermin and
other pests; (iv) regularly clean and, when necessary, replace all floor
treatment (including carpet) which adjoins any Common Areas; (v) comply with all
recommendations of any public or private agency having authority over insurance
rates with respect to the use or occupancy of the PREMISES by TENANT;
(vi) install and maintain any fire extinguishing apparatus required by local
regulations or the requirements of insurance underwriters; (vii) comply with all
reasonable rules and regulations which LANDLORD may from time to time establish
for the use and care of the PREMISES, Common Areas, Service Areas and other
facilities and buildings on the Shopping Center; (viii) not advertise the
PREMISES for sale, lease, sublease or any other transfer; (ix) not solicit
business in the Common Areas, nor distribute handbills or other matter to
customers nor place the same in or on vehicles in the Common Areas; (x) not park
and require its employees to refrain from parking any vehicles on Shopping
Center land except in such places as may be designated from time to time by
LANDLORD for the use of TENANT and its employees, and furnish to LANDLORD or its
agent or designee, within five (5) calendar days after request therefor, the
license numbers of its own and its employees' vehicles, and if LANDLORD has so
requested such numbers, will notify LANDLORD of any changes within five (5)
calendar days after such changes occur, (xi) reimburse LANDLORD for the cost of
towing away from the Shopping Center any vehicles of TENANT or its employees
that are improperly parked; (xii) not use the PREMISES for any unethical,
unlawful, disreputable or immoral purpose or in any other manner which might
damage the reputation of the Shopping Center, (xiii) not use nor permit the use
of any equipment or apparatus producing, reproducing or transmitting sound which
is audible beyond the interior of the PREMISES; (xiv) not permit objectionable
odors to emanate or be unreasonably dispelled from the PREMISES; (xv) not load
or unload nor permit the loading or unloading of merchandise, supplies or other
property except at the rear of the PREMISES or such other area designated by
LANDLORD for such purposes; (xvi) use its best efforts to prevent the parking or
standing of trucks, trailers, or other vehicles or equipment except when
actually engaged in such loading or unloading; (xvii) not maintain nor permit
any coin or token-operated machines of any nature within the PREMISES except
vending machines located In non-sales areas which are solely for the use of
TENANT'S employees; (xviii) not erect any satellite dishes, antennae, wiring or
aerials upon the roof of the PREMISES or the building d which it is a part;
(xix) not permit the display or sale of catalogs other than catalogs exclusively
promoting TENANT'S merchandise; and (xx) will keep its doors, if any, which
front on the Enclosed Mail in an open position to promote the free flow of
pedestrian traffic during the hours that TENANT'S store is open for business.
(j) MECHANIC'S LIENS AND OTHER ENCUMBRANCES. TENANT will not permit to be
created nor to remain undischarged any lien, encumbrance or charge arising out
of any work of any contractor, mechanic, laborer or materialman which might be
or become a lien or encumbrance or charge upon the PREMISES or any part thereof
or the income therefrom. TENANT will not enter into any mortgage, conditional
sale, security agreement or like instrument nor suffer any other matter or thing
whereby the estate, right and Interest of LANDLORD in the PREMISES or any part
thereof might be impaired or diminished. 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 on the PREMISES is fled against
the PREMISES or any part of the Shopping Center, TENANT will, within ten (10)
calendar days after notice of the filing thereof, cause the same to be
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discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction, letter of credit or other adequate security. If TENANT fails to
cause such lien or notice of lien to be discharged within such period, LANDLORD
may, but shall not be obligated to, discharge the same either by paying the
amounts claimed to be due or by procuring the discharge of such lien by deposit,
bond, or otherwise and TENANT shall reimburse LANDLORD for such amounts upon
demand. In any event, LANDLORD will be entitled, if LANDLORD so elects, to
compel the prosecution of a judgment in favor of the lienor with interest, costs
and allowances. Nothing herein shall obligate TENANT to pay or discharge any
lien created by LANDLORD.
(k) OPERATION OF TENANT'S HEATING, VENTILATING AND AIR CONDITIONING
SYSTEM. TENANT agrees to operate its heating, ventilating and air conditioning
(VAC) system so as to adequately heat or cool the PREMISES, as the case may be,
during the hours that TENANT'S store is open for business, and if the PREMISES
has an entrance on any Enclosed Mail, to maintain at all times, whether or not
TENANT is open for business, temperatures in the PREMISES consistent with the
temperature in the Enclosed Mall so as not to cause any decrease or increase in
the temperature in the Enclosed Mall when the same is being heated or cooled, as
the case may be.
ARTICLE 9: INDEMNITY AND INSURANCE
SECTION 1. INDEMNIFICATION BY TENANT
Commencing on the earlier of the Rent Commencement Date or the date upon
which TENANT first enters upon the PREMISES, TENANT will indemnify, defend and
hold harmless LANDLORD and/or any fee owner or underlying lessor(s) of the
Developer Parcel or the Shopping Center from and against all claims, actions,
liens, demands, expenses and judgments for loss, damage, or injury to property
or persons resulting or occurring by reason of the construction, use or
occupancy of the PREMISES by TENANT. If LANDLORD is made a party to any
litigation commenced by or against TENANT, TENANT agrees to protect, defend and
hold LANDLORD harmless therefrom and to pay all costs, expenses and reasonable
attorney fees incurred or paid by LANDLORD in connection with such litigation.
SECTION 2. COMMERCIAL GENERAL LIABILITY INSURANCE
TENANT agrees to carry at its own expense, commercial general liability
insurance covering the PREMISES and TENANT'S use thereof with companies and in a
form satisfactory to LANDLORD. Such policy or policies shall include
contractual liability, personal injury liability and product liability and shall
have a minimum combined single limit of Three Million Dollars ($3,000,000.00)
per occurrence and in the aggregate for bodily injuries and for property damage.
The liability insurance required of TENANT may be provided under a primary and
an excess limits policy covering the PREMISES and other property, provided that
TENANT shall furnish a certificate of such policy to LANDLORD evidencing the
minimum coverage referred to herein. The coverage may also be provided under a
blanket liability policy, provided that the minimum limits required herein are
provided under such policy on an aggregate per location basis. TENANT'S
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policy or policies shall name LANDLORD, The Xxxxxxx X. Xxxxxx Group, Inc.,
and JG Shopping Center Management LLC (LANDLORD'S management company) as
additional insureds and shall bear endorsements to the effect that the
insurer agrees to notify LANDLORD not less than thirty (30) calendar days in
advance of any modifications or cancellation thereof. TENANT shall deposit
certificates evidencing such coverage with LANDLORD prior to the date of any
use or occupancy of the PREMISES by TENANT.
SECTION 3. PROPERTY INSURANCE
LANDLORD agrees to carry policies insuring the Mall Stores and the Enclosed
Mall, to the extent located on the Developer Parcel, against fire and such
perils or loss as LANDLORD may deem appropriate, including at least those perils
from time to time included in standard "all risk coverage" endorsements or
policies and loss of rentals. LANDLORD'S coverage shall be in an amount equal
to at least ninety percent (90%) of the replacement cost of such improvements
and shall include so much of TENANT'S original construction pursuant to Exhibit
C as are commonly called "leasehold improvements" or "betterments" and which are
to remain upon TENANT'S vacating the PREMISES. Such policies shall not,
however, include trade fixtures, furnishings, ceiling-hung chandeliers and other
adornments, special equipment and personal property including, but not limited
to inventory of TENANT, all of which TENANT agrees to insure, at its expense,
against fire and such other risks as are from time to time included in standard
"all risk coverage" endorsements or policies in an amount equal to at least
ninety percent (90%) of replacement cost thereof. Prior to the Rent
Commencement Date, TENANT agrees to furnish LANDLORD with a certificate
evidencing such coverage, with companies and in a form satisfactory to LANDLORD.
SECTION 4. WAIVER OF SUBROGATION
LANDLORD and TENANT each hereby waive any rights they may have against the
other, including but not limited to a direct action for damages, on account of
any loss or damage occasioned to LANDLORD or TENANT, as the case may be (whether
or not such loss or damage is caused by the fault, negligence or other tortious
conduct, acts or omissions of LANDLORD or TENANT or their respective officers,
directors, employees, agents or invitees), to their respective property, the
PREMISES, its contents or to any other portion of the Shopping Center to the
extent such property is or should have been covered by the property insurance
required under this lease. The parties hereto each, on behalf of their
respective insurance companies insuring the property of either LANDLORD or
TENANT against any such loss, waive any right to subrogation that LANDLORD or
TENANT or their respective insurers may have against the other party or their
respective officers, directors, employees, agents or invitees and all rights of
their respective insurance companies based upon an assignment from its insured.
Each party to this lease agrees immediately to give to each such insurance
company written notification of the terms of the mutual waivers contained in
this Section, and to have said insurance policies properly endorsed, if
necessary, to prevent the invalidation of said insurance coverage by reason of
said waivers. The foregoing waiver shall be effective whether or not the
parties maintain the required insurance.
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SECTION 5. LIMIT ON LANDLORD'S LIABILITY FOR DAMAGE
Notwithstanding anything in this Article 9 to the contrary, LANDLORD shall
not be responsible or liable for and TENANT hereby expressly waives all claims
against LANDLORD for injury to persons or damage to TENANT'S property resulting
from (i) water, snow or Ice being upon or coming through the roof, walls,
windows or otherwise; (ii) wind, water or flooding; (iii) any act, omission or
negligence of co-tenants or other persons or occupants of the Shopping Center;
(iv) the acts of any owners or occupants of adjoining or contiguous property; or
(v) failure of the electrical system, the heating or air conditioning systems,
or the plumbing and sewer systems. LANDLORD shall not be liable for any damage
occasioned by Its failure to keep the PREMISES in repair unless LANDLORD is
obligated to make such repairs under the terms hereof, notice of the need for
such repairs has been given LANDLORD, a reasonable time has elapsed and LANDLORD
has failed to make such repairs.
ARTICLE 10: REPAIRS AND ALTERATIONS
SECTION 1. REPAIRS BY LANDLORD
LANDLORD will keep and maintain the foundations, roof and Common Utilities
up to the point of entry to the PREMISES and structural portions of the exterior
walls of the PREMISES (excepting any walls which are installed by or on behalf
of TENANT) in good condition and repair, except for repairs required thereto by
reason of the acts of TENANT, its employees, agents, invitees, licensees, or
contractors. XXXXXX agrees to give LANDLORD written notice of the necessity for
repairs coming to the attention of TENANT. The provisions of this Section shall
not apply in the case of damage or destruction by fire or other casualty or a
taking by Eminent Domain, in which events the obligations of LANDLORD shall be
controlled by Article 13 or Article 14 hereof, as the case may be.
SECTION 2. REPAIRS BY TENANT
Subject only to the specific obligations of LANDLORD set forth in this
Article 10, Section 1, TENANT will keep and maintain the PREMISES and every part
thereof and any fixtures, facilities or equipment contained therein in good
condition and repair, including, but not limited to, the heating, air
conditioning, electrical, plumbing and sewer systems, floors, the exterior
doors, security grilles, interior walls, ceilings, window frames and all
portions of the storefront area, and shall make any replacements thereof and
shall replace all broken and cracked glass. The provisions of this Section
shall not apply in the case of damage or destruction by fire or other casualty
or a taking by Eminent Domain, in which events the obligations of TENANT shall
be controlled by Article 13 or Article 14 hereof, as the case may be.
SECTION 3. ALTERATIONS OR IMPROVEMENTS BY TENANT
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TENANT shall not make or permit to be made any alterations, additions, or
improvements of any kind or nature to the PREMISES or any part thereof,
including any exterior walls or the exterior face of service corridor walls,
without first obtaining the written consent of LANDLORD, which consent shall
be at LANDLORD'S sole discretion (unless required by code or under any local,
state or federal law or regulation In which event LANDLORD'S consent shall
not be unreasonably withheld). If LANDLORD grants consent, TENANT shall make
such alterations, additions or improvements in accordance with applicable
provisions of Exhibit C, applicable laws and building codes and in good and
workmanlike manner, LANDLORD'S review or approval of the plans,
specifications and drawings for TENANT'S alterations shall create no
responsibility or liability on the part of LANDLORD for their completeness,
design sufficiency, or compliance with all laws, rules and regulations, all
of which shall be TENANT'S sole responsibility. TENANT agrees to promptly
repair any damage to the PREMISES or to the building of which the PREMISES is
a part caused by such alterations, additions or Improvements by TENANT.
Notwithstanding the above, LANDLORD in its discretion reserves the right to
require TENANT, at its expense, to make alterations to any exterior walls or
service corridor walls, which alterations may include but are not limited to,
requiring windows to be located in same and in such event, TENANT agrees to
comply with all applicable provisions of this Article 10, Section 3.
SECTION 4. REMOVAL OF IMPROVEMENTS
Except as otherwise provided herein, all items of construction, primary
lighting fixtures, heating and air conditioning equipment, and all alterations,
installations, additions and other leasehold improvements made by TENANT will
become the property of LANDLORD and may not be removed from the PREMISES. All
trade fixtures, furniture, furnishings and signs installed in the PREMISES by
TENANT will remain the property of TENANT and may be removed upon the expiration
or earlier termination of the term of this lease; provided (i) that any of such
Items as are affixed to the PREMISES and require severance may be removed only
if TENANT repairs any damage caused by such removal so that the PREMISES is
restored to the condition existing immediately prior to such removal; and (ii)
that TENANT has fully performed all of the covenants and agreements to be
performed by TENANT under the provisions of this lease. If TENANT falls to
remove such items from the PREMISES prior to the expiration or earlier
termination of this lease, all trade fixtures, furniture, furnishings and signs
shall become the property of the LANDLORD unless LANDLORD elects to require
their removal, in which case TENANT will promptly remove same and restore the
PREMISES to its prior condition. In the event TENANT falls to remove its trade
fixtures, furniture, furnishings, and signs, LANDLORD, In its sole discretion,
may deem such Items to be abandoned by TENANT, and LANDLORD shall have the right
to dispose of same, which shall not be construed or deemed as a realization on
such property and which shall In no way Impair LANDLORD'S right to pursue any
outstanding Rent due hereunder as otherwise provided, and shall not affect
LANDLORD'S right to declare TENANT to be a holdover.
ARTICLE 11: ASSIGNING AND SUBLETTING
SECTION 1. NO ASSIGNING OR SUBLETTING
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TENANT will not, voluntarily, involuntarily or by operation of law, assign,
sell, mortgage, pledge or in any manner transfer this lease or any interest
therein (all of which shall be deemed to constitute an assignment for purposes
of this lease), nor sublet the PREMISES or any part thereof, nor license
concessions nor lease departments In the PREMISES (all of which shall be deemed
to constitute a sublease for purposes of this lease), notwithstanding any
references herein to assignees, sublessees or other persons. XXXXXXXX has
entered into this lease with TENANT in order to obtain for the benefit of the
entire Shopping Center the unique attraction of TENANT'S trade name,
merchandising mix and the product line associated with TENANT'S business as
described in Article 8, Sections 1 and 2, respectively, and the prohibition on
assignment or subletting or the like provided for In this Article 11 is
expressly agreed to by TENANT as an Inducement to LANDLORD to enter into this
lease. In the event of a purported subletting of all or any part of said
PREMISES or purported assignment of this lease, it is mutually agreed that
TENANT will nevertheless remain fully and primarily liable under the terms,
covenants and conditions of this lease. At LANDLORD'S election, LANDLORD may
consider any purported subletting or assignment a default and elect any remedies
provided in Article 12. If this lease is assigned or if the PREMISES or any
part thereof be subleased or occupied by anybody other than TENANT in
contravention of this lease, LANDLORD may, nevertheless, collect from the
assignee, sublessee or occupant any Rent payable by TENANT under this lease and
apply the amount collected to Rent herein reserved, but such election by
LANDLORD will not be deemed an acceptance of the assignee, sublessee or occupant
as TENANT nor a release of TENANT from performance under this lease.
SECTION 2. CHANGE IN OWNERSHIP
If TENANT or any guarantor of this lease is a corporation the stock of
which is not traded on any national securities exchange (as defined in the
Securities Exchange Act of 1934, as amended), then the following shall
constitute a prohibited assignment of this lease for all purposes of this
Article 11: (i) the merger, consolidation, liquidation or reorganization of such
corporation; and/or (ii) the sale, Issuance, or transfer, cumulatively or in one
transaction, of any voting stock, by TENANT or any guarantor of this lease or
the stockholders of record of either as of the date of this lease, which results
in a change in the voting control of TENANT or the guarantor of this lease,
except any such transfer by inheritance or testamentary disposition.
If TENANT or any guarantor of this lease is a partnership, joint venture,
trust, limited liability company, unincorporated association or other business
entity, then the sale, issuance or transfer of a controlling interest therein,
or the transfer of a majority interest in or a change In the voting control of
any partnership, joint venture, trust, limited liability company, unincorporated
association or other business entity which directly or indirectly controls
TENANT, or the transfer of any portion of any general partnership or managing
interest in TENANT or in any such entity, shall be deemed to be a prohibited
assignment of this lease, except any transfer by Inheritance or testamentary
disposition.
ARTICLE 12: DEFAULT AND REMEDIES
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SECTION 1. EVENTS OF DEFAULT
This lease is made upon the condition that TENANT will punctually and
faithfully perform all of the covenants and agreements by it to be performed as
herein set forth and the occurrence of any of the following shall constitute an
event of default and a breach of this lease by TENANT:
(a) Any item comprising Rent required to be paid by TENANT remaining in
arrears and unpaid for ten (10)calendar days after written notice from LANDLORD
to TENANT of delinquency; provided that if within any twelve (12) consecutive
calendar month period TENANT is delinquent in the payment of Rent more than two
(2) times and LANDLORD shall have served upon TENANT two (2) or more ten (10)
calendar day notices of delinquency, the requirements for notice and the ten
(10) calendar day grace period shall be deemed waived by TENANT for the balance
of such twelve (12) consecutive calendar month period and any further arrearage
In Rent during the balance of such twelve (12) consecutive calendar month period
shall constitute an event of default on the day same was due;
(b) The PREMISES shall be vacated or abandoned;
(c) This lease shall be assigned or the PREMISES sublet in contravention
of Article 11;
(d) There shall be an attachment, execution or other judicial seizure of
substantially all of TENANT'S assets located in the PREMISES or of TENANT'S
interest in this lease;
(e) TENANT, or any guarantor of this lease, shall file a petition in
bankruptcy or be adjudicated a bankrupt, file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief for itself under any present or future federal, state or other
statute, law or regulation, make an assignment for the benefit of creditors or
if a trustee, receiver or liquidator of all or a substantial part of TENANT'S or
any guarantor's properties or of the PREMISES shall be appointed in any action,
suit or proceeding by or against TENANT or any guarantor and such proceeding or
action shall not have been dismissed within thirty (30) calendar days after such
appointment;
(f) With the exception of items (a) through (e) above, a failure by TENANT
to observe or perform any of the other covenants, agreements or conditions of
this lease on the part of TENANT to be kept or performed and said failure shall
continue for a period of ten (10) calendar days after written notice thereof
from LANDLORD to TENANT (unless such default cannot reasonably be cured within
ten [10] calendar days and TENANT shall, within such period, commence such cure
and thereafter diligently prosecute the same to completion).
(g) TENANT shall be in default on or before the Rent Commencement Date
hereof under a prior lease with LANDLORD for the PREMISES or other premises
within the Shopping Center which default remains uncured or resulted in TENANT'S
dispossession of the PREMISES or such other premises within the Shopping Center.
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SECTION 2. LANDLORD'S REMEDIES
Should any of the foregoing events of default occur, LANDLORD, at its
option, may exercise the following remedies:
(a) LANDLORD may terminate this lease and re-enter the PREMISES and take
possession thereof with full right to sue for and collect all sums or amounts
with respect to which TENANT may be in default and accrued up to the time of
such entry, Including damages to LANDLORD by reason of any breach or default on
the part of TENANT, and TENANT'S liability under all of the provisions of this
lease shall continue thereafter notwithstanding any such termination or re-entry
by LANDLORD;
lb) LANDLORD may retake possession of the PREMISES, by summary proceedings
or otherwise, without terminating this lease, and the commencement and
prosecution of any action by LANDLORD In forcible entry and detainer, ejectment
or otherwise, or any execution of any judgment or decree obtained in any action
to recover possession of the PREMISES, or the recovery of possession without
resort to legal process including, without limitation. the termination of
utility service to, removal of personal property from and the changing of locks
upon the PREMISES, shall not be construed as an election to terminate this lease
or to absolve or discharge TENANT from any of its obligations and liabilities
for the remainder of the term of this lease, and TENANT will, not withstanding
such reentry, continue to be liable for the payment of Rent and the performance
of the other covenants and conditions hereof and will pay to LANDLORD all
deficits after any such reentry in monthly installments as the amounts of such
deficits from time to time are ascertained; provided that LANDLORD may at any
time following such reentry during the remaining unexpired term hereof, without
further notice to TENANT, terminate this lease; and/or
(c) LANDLORD may bring suit for the collection of all sums or amounts with
respect to which TENANT may be in default and/or all damages attributable to any
default by TENANT, or any action seeking injunctive relief to specifically
enforce the covenants of TENANT in this lease, or any other suit or proceeding
for any other relief available to LANDLORD at law or In equity. For purposes
hereof, such Rent to which LANDLORD shall be entitled to recover as damages in
the event of TENANT'S default shall include, but not be limited to, the greatest
effective Rent paid or accrued throughout the term of this lease. Effective
Rent shall be defined as the sum of Fixed Minimum Rent and Percentage Rate due
LANDLORD from TENANT in any full or Partial Lease Year.
A termination of this lease by LANDLORD or the recovery of possession of
the PREMISES by LANDLORD, or any voluntary or other surrender of this lease by
TENANT or a mutual cancellation thereof, shall not work a merger and shall, at
the option of LANDLORD, terminate all or any existing franchises, concessions,
licenses, permits, subleases, subtenancies, departmental operating arrangements
or the like between TENANT and any third party with respect to the PREMISES, or
may, at the option of LANDLORD, operate as an assignment to LANDLORD of TENANT'S
Interest in the same.
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Should LANDLORD terminate this lease or retake possession of the PREMISES
without terminating this lease, LANDLORD may enter upon the PREMISES and remove
TENANT, TENANT'S agents, sublessees, licensees, franchisees and invitees and
their property without being deemed guilty of trespass or becoming liable for
any loss or damage which may be occasioned thereby. In the event LANDLORD
relets the PREMISES to some other person, firm or corporation (whether for a
term greater, less than or equal to the unexpired portion of the term created
hereunder) and at the time of such reletting there exists within the Shopping
Center vacant Mall Store space of a size which could accommodate the replacement
tenant for the PREMISES (the "Alternate Space"), no amount of the Rent received
by LANDLORD for the reletting of the PREMISES shall be credited against the
obligation of TENANT to pay Rent under this lease until such time, if ever,
during the remainder of the term of this lease as no Alternate Space exists.
Thereafter, all Rent received by LANDLORD from such reletting shall be applied,
first, to the payment of any costs and expenses of such reletting, including
brokerage commissions, attorney's fees and costs of placing the PREMISES in a
tenantable condition or otherwise; second, to the payment of any damages or
Indebtedness other than Rent due hereunder from TENANT to LANDLORD; third, to
the payment of Rent due and unpaid hereunder, and the residue, if any, shall be
held by LANDLORD and applied in payment of future Rent as the same may become
due and payable hereunder. LANDLORD may immediately upon the making of such new
lease or the creation of such new tenancy accelerate the balance of the Rent due
under the terms of this lease and TENANT shall be responsible for the deficiency
in Rent for the balance of the term of this lease. In determining the
Percentage Rent component of the aggregate Rent payable by TENANT hereunder, the
greatest effective Rent paid or accrued throughout the term of this lease shall
be used. If such lease or tenancy is made for a shorter term than the balance
of the term of this lease, any such action brought by LANDLORD to collect the
deficit for that period shall not bar LANDLORD from thereafter suing for any
loss accruing for the balance of the unexpired term of this lease. If the
tenant under any such replacement lease defaults In the payment of Rent, any
previous action against TENANT to accelerate the balance of the Rent due
hereunder shall not bar LANDLORD from thereafter suing for any additional loss
accruing for the balance of the unexpired term of this lease resulting from the
defaults of the replacement tenant, up to the full amount of the Rent due under
this lease for the remainder of the term. In connection with any such
reletting, LANDLORD reserves the right to subdivide or expand the PREMISES or
otherwise change the size and/or configuration thereof without in any way
affecting TENANT'S liability hereunder. Should LANDLORD relet the PREMISES to
another tenant in the Shopping Center, thereby causing an Interruption in the
payment of Rent accruing under the lease for such other tenant's previous
location within the Shopping Center, TENANT shall become and remain liable for
the payment of any such sums as they otherwise would have accrued, to the extent
the same do not exceed the amounts which would otherwise be payable by TENANT to
LANDLORD hereunder. Nothing contained in this Article 12 or elsewhere In this
lease shall obligate LANDLORD to attempt to relet the PREMISES under any
circumstances during the term created hereunder.
SECTION 3. REMEDY FOR FAILURE TO OPEN OR OPERATE
31
Recognizing the difficulty or impossibility of determining LANDLORD'S
damages for loss of Percentage Rent anticipated from TENANT and/or occupants of
the Shopping Center or for loss of value of the Shopping Center because of
diminished salability, mortgagability, adverse publicity or appearance which may
result from any one or more of the events hereinafter enumerated, LANDLORD and
TENANT covenant and agree that in the event that TENANT (i) falls to take
possession of, construct and thereafter open the PREMISES for business, fully
fixtured, stocked and staffed on the Rent Commencement Date; or (ii) vacates or
abandons the PREMISES; or (iii) ceases to operate TENANT'S business within the
PREMISES In full compliance with the use and business hours requirements of
Article 8, Sections 1 and 2 hereof, then and In any of such events, LANDLORD
shall have the right, at Its option to (a) collect not only the Rent reserved,
but also an amount equal to three-fourths (3/4) of the Rent reserved for the
period or periods during which any of the aforementioned events shall continue,
prorated on a daily basis for each and every day during such period, such
additional amount to constitute liquidated damages for TENANT'S breach, which
the parties agree represents a reasonable estimate of LANDLORD'S damages
sustained by reason of TENANT'S breach, and/or (b) to treat such action or
omission by TENANT as an event of default as hereinabove described and to
exercise any remedy therefor, whether reserved in this lease or available at law
or In equity. For purposes of this Article 12, the terms "vacate(s)" and
"abandon(s)" shall not be abrogated because TENANT may have left all or any part
of its trade fixtures, furniture, furnishings or stock-in-trade within the
PREMISES.
SECTION 4. DEFAULT IN OTHER CENTERS
The Shopping Center identified in this lease is one of several shopping
centers operated by LANDLORD'S agent. LANDLORD and TENANT herein expressly
recognize that part of the Inducement for LANDLORD, by and through Its agent,
The Xxxxxxx X. Xxxxxx Group, Inc., to enter into this lease with TENANT In this
Shopping Center Is the performance of TENANT and/or any affiliate of TENANT of
all of Its obligations with respect to Its lease for space In one or more of
such other shopping centers. To this end, any default by TENANT, or any parent,
subsidiary, or affiliate of TENANT under any lease in any shopping center law .
managed, or otherwise operated or owned, In whole or In part, by LANDLORD, The
Xxxxxxx X. Xxxxxx Group, Inc. (or its affiliates), Center Ridge Co., Commercial
Realty Management Co. or Weston Management Company Limited Partnership, whether
such other lease Is executed prior or subsequent to the date of this lease,
shall at LANDLORD'S option constitute a default by TENANT hereunder.
SECTION 5. LANDLORD'S RIGHT OF SELF-HELP
In addition to LANDLORD'S rights of self-help set forth elsewhere in this lease,
if TENANT at any time falls to pay any taxes, assessments or liens, to make any
other payment or to perform any act required by this lease in a manner
reasonably satisfactory to LANDLORD. Including repairs to the PREMISES,
LANDLORD, without warning or releasing TENANT from any obligation or default
under this lease, may (but shall be under no obligation to) at any time
thereafter make such payment or perform such act for the account and at the
expense of TENANT. All sums so paid by LANDLORD and all costs and expenses
Incurred In connection therewith will constitute Additional
32
Rent payable by TENANT to LANDLORD upon billing by LANDLORD or LANDLORD may,
in its sole discretion, apply all or any portion of any Security Deposit
toward the satisfaction of said sums.
SECTION 6. NO LIMITATION OF RIGHTS AND REMEDIES
All rights and remedies of LANDLORD herein enumerated shall be cumulative
and shall not be construed to exclude any other remedies allowed at law or in
equity.
SECTION 7. LATE CHARGE
All sums (i) payable by TENANT to LANDLORD under this lease, including, but
not limited to Rent and any amounts due LANDLORD or LANDLORD'S contractor under
Exhibit C; or (ii) expended by LANDLORD on behalf of TENANT pursuant to Section
5 of this Article 12, is not paid when due, will accrue a late charge from the
date due as set forth in this lease until paid at the rate of one and one-half
percent (1 1/2%) per month or the maximum lawful contract rate, whichever is
less, said late charge to be deemed Additional Rent payable by TENANT to
LANDLORD upon billing by LANDLORD.
SECTION 8. ATTORNEYS' FEES
If either LANDLORD or TENANT institutes any action or proceeding or asserts
any counterclaim against the other relating to the provisions of this lease or
any default hereunder, the unsuccessful party in such action or proceeding
agrees to reimburse the successful party for the reasonable expense of
attorneys' fees, costs, expenses and disbursements incurred by the successful
party before, during and after trial and on appeal.
SECTION 9. WAIVER OF TRIAL BY JURY
To the extent permitted by applicable law LANDLORD and TENANT hereby waive
all right to trial by jury in any claim, action, proceeding or counterclaim by
either LANDLORD or TENANT against each other on any matter arising out of or in
any way connected with this lease, the relationship of landlord and tenant or
TENANT'S use or occupancy of the PREMISES.
ARTICLE 13: DAMAGE, DESTRUCTION AND RESTORATION
In the event that the PREMISES is damaged by any peril covered by
LANDLORD'S Insurance to the extent of less than twenty-five percent (25%) of the
cost of replacement of the PREMISES, the damage to the PREMISES will promptly be
repaired by LANDLORD at LANDLORD'S expense, but in no event shall LANDLORD be
required to repair or replace TENANT'S stock-in-trade, trade fixtures,
furniture, furnishings or other items of personal property which TENANT is
obligated to insure pursuant to Article 9, Section 3. in the event of any damage
and (i) LANDLORD Is not required to repair as hereinabove provided; or (ii) the
PREMISES is
33
damaged to the extent of twenty-five percent (25%) or more of the
cost of replacement; or (iii) the building of which the PREMISES is a part is
damaged to the extent of fifty percent (50%) or more of the cost of replacement;
or (iv) such damage occurs during the last three (3) Lease Years of the term,
LANDLORD may elect either to repair or rebuild the PREMISES or the building of
which the PREMISES is a part as the case may be, or to terminate this lease upon
giving notice of such election in writing to TENANT within ninety (90) calendar
days after the happening of the event causing the damage. If the casualty,
repairing, or rebuilding shall render the PREMISES untenantable, in whole or in
part, a proportionate abatement of the Rent shall be allowed from the date when
the damage occurred until the date LANDLORD completes the repairs or rebuilding,
said proportion to be computed on the basis of the rotation which the Gross
Leasable Area of the space rendered untenantable bears to the Gross Leasable
Area of the PREMISES. If LANDLORD Is required or elects to repair the PREMISES
as herein provided, TENANT will repair or replace Its stock-in-trade, trade
fixtures, furniture, furnishings and other items of personal property which
TENANT is obligated to insure in a manner and to at least a condition equal to
that prior to its damage or destruction.
ARTICLE 14: EMINENT DOMAIN
SECTION 1. ALL OF PREMISES TAKEN
If the whole of the PREMISES is taken by any public authority under the
power of Eminent Domain, this lease shall terminate as of the date possession is
taken by such public authority and TENANT shall pay Rent up to that date with an
appropriate refund by LANDLORD of such Rent as may have been paid in advance for
a period subsequent to the date of the taking.
SECTION 2. LESS THAN TWENTY-FIVE PERCENT (25%) OF PREMISES TAKEN
If less than twenty-five percent (25%) of the Gross Leasable Area of the
PREMISES is taken, this lease shall terminate only with respect to the part
taken as of the date possession Is taken by such public authority, and TENANT
shall pay Rent up to that date with an appropriate refund by LANDLORD of such
Rent as may have been paid in advance for a period subsequent to the date of the
taking and, thereafter, the Rent shall be equitably adjusted and LANDLORD will,
at its expense, make all necessary repairs or alterations to the basic building
and exterior work so as to constitute the remainder of the PREMISES a complete
architectural unit.
SECTION 3. TWENTY-FIVE PERCENT (25%) OR MORE OF PREMISES TAKEN
If twenty-five percent (25%) or more of the Gross Leasable Area of the
PREMISES Is taken, this lease shall terminate only with respect to the part so
taken as of the date possession is taken by such public authority, and TENANT
shall pay Rent up to that date with an appropriate refund by LANDLORD of such
Rent as may have been paid in advance for a period subsequent to the date of the
taking, and either party shall have the right to terminate this lease upon
notice in writing to the other party given within thirty (30) calendar days from
the date of such taking. If neither party elects
34
to so terminate, all of the terms herein provided will continue In effect
except that Rent shall be equitably adjusted and LANDLORD will, at its
expense, make all necessary repairs or alterations to the basic building and
exterior work so as to constitute the remainder of the PREMISES a complete
architectural unit.
SECTION 4. MORE THAN FIFTY PERCENT (50%) OF THE GLA OF THE MALL STORES TAKEN
If more than fifty percent (50%) of the Gross Leasable Area of the Mail
Stores or more than fifty percent (50%) of the parking area within the Shopping
Center is taken, either party shall have the right to terminate this lease upon
notice In writing to the other party given within thirty (30) days from the date
of such taking. If this lease is not so terminated in its entirety, this lease
shall terminate only with respect to that portion of the Gross Leasable Area of
the PREMISES taken, if any, as of the date possession is taken by such public
authority, whereupon TENANT shall receive an appropriate refund by LANDLORD of
any Rent paid in advance with respect to that portion of the PREMISES taken, and
the Rent shall be equitably adjusted for the remainder of the term; furthermore,
LANDLORD shall, at Its expense, make all necessary repairs and alterations to
the basic building and exterior work so as to make the PREMISES, or the
remainder thereof in the event a portion of the PREMISES is taken, a complete
architectural unit.
SECTION 5. LANDLORD'S RESTORATION OBLIGATION
In the event LANDLORD is obligated to restore the PREMISES to a complete
architectural unit pursuant to this Article 14, LANDLORD will not be required to
spend for such work an amount in excess of amount received by LANDLORD as
damages for the part of the PREMISES so taken, less any amount paid LANDLORD'S
mortgagee from such award.
SECTION 6. OWNERSHIP OF AWARDS
In the event the Shopping Center, the Developer Parcel, the PREMISES or any
portions thereof are taken or condemned either permanently or temporarily for
any public or quasi-public use or purpose by a competent authority in
appropriation proceedings or by the exercise of any right of Eminent Domain, the
entire compensation award therefor, including, but not limited to, all damages
as compensation diminution in value of the leasehold, reversion, and fee, shall
belong to LANDLORD without any deduction therefrom for any present or future
estate of the TENANT, and TENANT hereby assigns to LANDLORD all its right, title
and interest to any such award. Although all damages In the event of any
condemnation to belong to LANDLORD, whether such damages are awarded as
compensation for diminution in value the leasehold, reversion or to the fee of
the PREMISES, TENANT shall have the right to claim and rec from the condemning
authority, but not from LANDLORD, such compensation as may be separately awarded
or recoverable by TENANT in TENANT'S own right on account of damage to TENANT'S
business by reason of the taking and for or on account of any cost or loss to
which TENANT might be put removing TENANT'S merchandise, furniture, fixtures,
improvements and equipment.
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ARTICLE 15: SUBORDINATION AND ATTORNMENT
Upon written request or notice by LANDLORD, concurred in by any mortgagee,
trustee or security holder of the Developer Parcel or any part thereof which
includes the PREMISES, or by any person, firm corporation intending to become a
mortgagee, trustee, or security holder, TENANT agrees to subordinate its rights
under this lease to the lien or liens of any mortgage, deed of trust or other
method of financing refinancing now or hereafter existing and to any and all
advances to be made thereunder, and to the interest thereon, and all renewals,
replacements and extensions thereof, provided the mortgagee or trustee named in
said mortgage or deed of trust or security holder under a different method of
financing shall agree recognize this lease of TENANT In the event of foreclosure
if TENANT is not in default. TENANT also agrees that any mortgagee, trustee or
security holder may elect to have this lease prior to the lien of its mortgage
deed of trust or other method of financing, and in the event of such election
and upon notification by such mortgages, trustee or security holder to TENANT to
that effect, this lease shall be deemed prior in lien (but not in respect to the
priority of entitlement to insurance proceeds or any award in condemnation) to
mortgage, deed of trust or other method of financing, whether this lease is
dated prior to or subsequent the date of said mortgage, deed of trust or other
method of financing. TENANT agrees that upon ten (10) calendar days prior
written request from LANDLORD, any mortgagee or any trustee named in such
mortgage or deed of trust or security holder under a different method of
financing, it will execute and deliver whatever instruments may be required for
such purposes. TENANT will, in the event of the sale assignment of LANDLORD'S
interest in the Developer Parcel or in the event of any proceedings brought if
the foreclosure of, or in the event of the exercise of the power of sale under
any mortgage covering the Developer Parcel, attorn to and recognize such
purchaser or mortgagee as LANDLORD under this lease.
ARTICLE 16: ESTOPPEL CERTIFICATES
At any time and from time to time, TENANT agrees, upon ten (10) calendar
days prior written request from LANDLORD, to execute, acknowledge and deliver to
LANDLORD, or to LANDLORD'S mortgagee(s), or any other party designated by
LANDLORD or LANDLORD'S mortgagee(s), a statement in writing and form and
substance satisfactory to LANDLORD certifying to all or any part of the
following information LANDLORD shall request to the extent that the same is then
true and ascertainable: (i) that this lease constitutes the entire agreement
between LANDLORD and TENANT and is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and effect as
modified and stating the modifications);, (ii) the date to which the Rent
hereunder has been paid, and the amount of any security deposited with LANDLORD:
(iii) that the PREMISES has been completed on or before the date of such letter
and that all conditions precedent to the Rent Commencement Date have been
carried out; (iv) that TENANT has accepted possession, is occupying the PREMISES
and knows of no defaults or offsets which TENANT has against the enforcement of
this lease by LANDLORD; (v) the Rent Commencement Date of this lease and the
expiration date of this lease; (vi) that TENANT'S store is open for business;
and (vii) any to matters relating to the status of the lease, the condition of
the PREMISES and the operation of TENANT business as shall be requested by
LANDLORD.
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ARTICLE 17: QUIET ENJOYMENT
LANDLORD covenants and agrees that if TENANT performs all the covenants and
agreements herein stipulated to be performed on TENANT'S part, TENANT will, at
all times during the continuance hereof, the peaceable and quiet enjoyment and
possession of the PREMISES without any manner of let or hindrance from LANDLORD
or any person or persons lawfully claiming the PREMISES.
ARTICLE 18: ACCESS TO PREMISES
LANDLORD shall have free access to the PREMISES at all reasonable times
for the purpose of examining the same or making any alterations or repairs to
the PREMISES and/or adjacent areas that LANDLORD deems necessary and during
the last three (3) months of the term for the purpose of exhibiting the
PREMISES and putting up the usual notice "to Rent," which notice shall not be
removed, obliterated or hidden by TENANT. Any such entry by LANDLORD will be
undertaken in a manner so as to cause as little Inconvenience as Is
reasonably practicable. The exercise of such right of access shall not be
deemed an eviction or disturbance of TENANT nor will TENANT be allowed any
abatement of Rent for inconvenience occasioned thereby.
ARTICLE 20: LIABILITY OF LANDLORD
Anything in this lease to the contrary notwithstanding, the covenants,
undertakings and agreements herein made on the part of LANDLORD are made and
intended not for the purpose of binding LANDLORD personally or the assets of
LANDLORD but are made and intended to bind only the LANDLORD'S Interest in the
PREMISES and Developer Parcel, as the same may, from time to time, be
encumbered. If LANDLORD, or any successor or assign, fails to perform any
covenant, term or condition of this lease upon LANDLORD'S part to be performed
and as a consequence of such default TENANT recovers a money judgment against
LANDLORD, such judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levy thereon against the right,
title and interest of LANDLORD in the PREMISES and the Developer Parcel (as the
same may then be encumbered) and no personal liability shall at any time be
asserted or enforceable against LANDLORD or Its stockholders, officers,
partners, members or managers or their respective heirs, legal representatives,
successors and assigns on account of the lease or on account of any covenant
undertaking or agreement of LANDLORD In this lease. It is understood that in no
event shall TENANT have the right to levy execution against any property of
LANDLORD other than its Interest in the PREMISES and the Developer Parcel as
hereinbefore expressly provided. In the event of any transfer(s) of LANDLORD'S
interest in the PREMISES or the Developer Parcel, other than a transfer for
security purposes only, the transferor shall be automatically relieved of any
and all obligations and liabilities on the part of LANDLORD accruing from and
after the date of such transfer.
ARTICLE 21: LIABILITY OF EXECUTING AGENT
37
This lease is executed by The Xxxxxxx X. Xxxxxx Group, Inc. not personally,
but as agent for LANDLORD in the exercise of the power and authority conferred
on it by LANDLORD. It is expressly understood and agreed that nothing in this
lease will be construed as creating any liability whatsoever against said
corporation, Its shareholders, officers or directors and, in particular, without
limiting the generality of the foregoing, there shall be no personal liability
to pay any indebtedness accruing hereunder or to perform any covenant, either
express or implied, herein contained to the end that LANDLORD, as principal,
will be solely responsible therefor.
ARTICLE 22: MISCELLANEOUS
SECTION 1. NOTICES
Any notice or consent to be given or on behalf of either party to the other
shall be in writing and will be deemed given when notice or consent is mailed by
registered or certified mail, return receipt requested, or, if sent by Federal
Express or other overnight courier which provides written evidence of delivery,
upon the day such delivery to the overnight courier is made, addressed to
LANDLORD at the address hereinabove specified, and to TENANT at the address
hereinabove specified, or the PREMISES, or at such other address as may be
specified from time to time by written notice sent to the other party in
compliance with this section.
SECTION 2. ACCORD AND SATISFACTION
No payment by TENANT or receipt by LANDLORD of a lesser amount than the
Rent herein stipulated will be deemed to other than on account of the earliest
stipulated Rent nor shall any endorsement or statement on any check or any
letter accompanying any check or payment of Rent be deemed an accord and
satisfaction, and LANDLORD may accept such check or payment without prejudice to
LANDLORD'S right to recover the balance of such Rent or pursue any other remedy
provided for in this lease or available at law or in equity.
SECTION 3. WAIVER
No waiver of any condition or legal right or remedy shall be implied by the
failure of LANDLORD to declare a forfeiture, or for any other reason, and no
waiver of any condition or covenant will be valid unless it be in writing signed
by LANDLORD. No waiver by LANDLORD in respect to one or more tenants or
occupants of the Shopping Center shall constitute a waiver in favor of any other
tenant, nor will the waiver of a breach of any condition be claimed or pleaded
to excuse a future breach of the same condition or covenant. The mention in
this lease of any specific right or remedy shall not preclude LANDLORD from
exercising any other right or from having any other remedy or from maintaining
any action to which it may be otherwise entitled either at law or in equity and
for the purpose of any suit by LANDLORD brought or based on this lease, this
lease shall be construed to be a divisible contract, to the end that successive
actions may be maintained as successive periodic sums shall mature under this
lease. It is further agreed that failure to include
38
in any suit or action any sum then matured shall not be a bar to the
maintenance of any suit or action for the recovery of said sum or sums so
omitted.
SECTION 4. BROKER'S COMMISSION
LANDLORD and TENANT warrant that there are no claims for broker's
commissions or finder's fees in connection with their execution of this lease
and agree to indemnify and save each other harmless from any liability that may
arise from such claim, including reasonable attorney's fees.
SECTION 5. INTERPRETATION
Wherever either the word "LANDLORD" or "TENANT" is used in this lease, it
shall be considered as meaning "LANDLORD'S" or "TENANT'S" respectively, wherever
the context permits or requires, and when the singular and/or neuter pronouns
are used herein, the same shall be construed as including all persons and
corporations designated respectively as LANDLORD or TENANT in the heading of
this instrument wherever the context requires.
SECTION 6. 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, inability to procure labor or materials, failure of power,
restrictive governmental laws or regulations, riots, insurrection, war, fire or
other casualty or other reason of a similar or dissimilar nature beyond the
reasonable control of the party delayed in performing work, or doing acts
required under the terms of this lease, then performance of such act shall be
excused for the period of the delay and the period for the performance of any
such act shall be extended for period equivalent to the period of such delay.
After the Rent Commencement Date the provisions of this Section shall not
operate to excuse TENANT from the prompt payment of Rent as required by this
lease and shall not extend the term of this lease. Delays or failures to
perform resulting from lack of funds shall not be deemed delays beyond the
reasonable control of a party.
SECTION 7. RELATIONSHIP OF PARTIES
Nothing herein contained shall be deemed or construed by LANDLORD or
TENANT, as creating the relationship of principal and agent or of a partnership
or joint venture or as establishing a fiduciary responsibility between LANDLORD
or TENANT, it being understood and agreed that none of the provisions herein,
nor any acts of LANDLORD and TENANT will be deemed to create any relationship
other than that of LANDLORD and TENANT.
SECTION 8. NO THIRD PARTY RIGHTS
39
The rights and obligations arising under this lease are personal between
LANDLORD and TENANT and such rights and obligations shall not be enforceable by
any third party. Furthermore, TENANT recognizes that it has not third party
rights arising out of any agreement between LANDLORD and any party other than
TENANT regardless of any benefits accruing to TENANT by virtue of such
agreement.
SECTION 9. NO NET INCOME ARRANGEMENT
TENANT specifically covenants and agrees that neither TENANT nor anyone
claiming an interest in or a right of occupancy or use of all or any portion of
the PREMISES by, through or under TENANT, shall enter into any sublease,
license, concession or other agreement for the use, occupancy or utilization of
space within the PREMISES which provides for rental or other payment for such
use, occupancy or utilization based on whole or in part on the net income or
profits derived by any person from the PREMISES, other than an amount based on a
fixed percentage of receipts or sales. Any such purported agreement in
violation of this covenant shall be absolutely void and ineffective as a
conveyance of any right or interest in the use, occupancy or the utilization of
any part of the PREMISES.
SECTION 10. SUCCESSORS
This lease and all of the covenants, provisions and conditions herein
contained will inure to the benefit of and be binding upon the heirs, personal
representatives, successors and assigns, respectively, of the parties hereto,
provided, however, that no assignment by, from, through or under TENANT in
violation of the provisions hereof shall vest in such assignee any right, title
or interest whatsoever.
SECTION 11. ENTIRE AGREEMENT
This lease sets forth all the covenants, promises, agreements, conditions
and understandings between LANDLORD and TENANT concerning the PREMISES and there
are no covenants, promises, agreements, conditions, or understandings, either
oral or written, between them other than as herein set forth. No subsequent
alteration, amendment, change or addition to this lease shall be binding upon
LANDLORD or TENANT unless reduced to writing and signed by them. TENANT agrees
that LANDLORD and its agents have made no representations or promises with
respect to the PREMISES or the building or property of which the same are a part
except as herein expressly set forth.
SECTION 12. SURRENDER AND HOLDING OVER
TENANT shall deliver up and surrender to LANDLORD possession of the
PREMISES upon the expiration of this lease, or its termination in any way, in as
good condition and repair as the same shall be at the commencement of said term
(damage by fire and other perils covered by insurance and ordinary wear and
decay only excepted) and shall deliver the keys at the office of LANDLORD
40
or LANDLORD'S agent. Should TENANT or any party claiming under TENANT remain
in possession of the PREMISES or any part thereof, without the express
written consent of LANDLORD, after any termination of this lease, not tenancy
or interest in the PREMISES shall result therefrom but such holding over
shall be an unlawful detainer and all such parties shall be subject to
immediate eviction and TENANT will pay to LANDLORD, upon demand (i) the Rent;
and (ii) as liquidated damages, a sum equal to double the Fixed Minimum Rent
specified herein for any period during which TENANT shall hold the PREMISES
after the term of this lease has expired.
SECTION 13. AUTHORITY
If TENANT is a corporation, TENANT warrants and represents to LANDLORD that
the execution of this lease by the person or persons signing has been authorized
by a resolution of TENANT'S Board of Directors or other appropriate corporation
action; if TENANT is a partnership, TENANT warrants and represents to LANDLORD
that TENANT'S execution of this lease by the partner or partners so signing is
in accordance with its partnership documents.
SECTION 14. NO OPTION
The submission of this lease for examination does not constitute a
reservation of or option for the PREMISES or any other space within the shopping
Center and shall vest no right in either party. This lease will become
effective as a lease only upon the execution and delivery thereof by the parties
hereto.
SECTION 15. ARTICLE AND SECTION HEADINGS
Article and section headings are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope or intent of
this lease nor in any way affect this lease.
SECTION 16. SEVERABILITY
In the event that any portions, articles or sections of this lease are
rendered invalid by the decision of any court or by the enactment of any law,
ordinance or regulation, such provision of this lease will be deemed to have
never been included therein and the balance of this lease shall continue in
effect in accordance with its terms.
SECTION 17. HAZARDOUS MATERIALS
TENANT shall not, without LANDLORD'S prior written consent, keep in, on
or about the PREMISES, Common Areas or Shopping Center, for use, disposal,
generation, transportation, storage, treatment or sale, any Hazardous
Materials. "Hazardous Materials" means and includes any materials (or
components thereof) now or hereafter designated and/or regulated as
hazardous, dangerous, toxic or harmful under Governmental Regulations.
"Governmental Regulations" means
41
and includes any provisions of law, statutes, ordinances, rules, regulations,
permits, licenses, judgments, writs, injunctions, decrees, orders, awards and
standards now or hereafter in effect or promulgated by any federal, state or
local government or by any court, agency, instrumentality, regulatory
authority or commission of any of the foregoing concerning health, safety and
the protection of the environment or the use, disposal, generation,
transportation, storage, treatment or sale of Hazardous Materials. If TENANT
desires to use, dispose of, generate, transport, store, treat or sell any
Hazardous Materials, then, in each such instance, TENANT shall first complete
and submit to LANDLORD for LANDLORD'S review a Material Profile Sheet in the
form attached hereto as Exhibit F, as the same may be revised from time to
time in LANDLORD'S discretion. Notwithstanding anything herein to the
contrary, TENANT may, without LANDLORD'S consent and without completing the
Material Profile Sheet, sue, store, and dispose of cleaning solvents in, on
or about the PREMISES, provided, however, that each such cleaning solvent is
of a type customarily used in the shopping center industry for maintenance of
retail stores, in a quantity no greater than the amount that can be utilized
in, on or about the PREMISES within a thirty (30) calendar day period, and is
used, disposed and stored in compliance with any Governmental Regulations.
Each Material Profile Sheet submitted by TENANT shall be accompanied by
copies of all permits required under applicable Governmental Regulations for
TENANT'S proposed use, disposal, generation, transportation, storage, treatment
or sale of any Hazardous Materials at the PREMISES. TENANT shall submit a new
Material Profile Sheet whenever it proposes to use, dispose of, generate,
transport, store, treat or sell a new Hazardous Material at the PREMISES, or
when it proposes to expand during any thirty (30) calendar day period, the
volume of existing Hazardous Materials to be used, disposed of, generated,
transported, stored, treated or sold at the PREMISES by ten percent (10%) of the
monthly volume originally consented to by LANDLORD. If LANDLORD in its sole
discretion finds the information set forth on the Material Profile Sheet
acceptable, LANDLORD shall delivery its written consent to TENANT. With respect
to any such Hazardous Material consented to by LANDLORD, TENANT shall:
(i) Comply with all applicable Governmental Regulations with respect to
such Hazardous Materials;
(ii) Allow LANDLORD'S agent or representative to come on the PREMISES at
all times to check all conditions relating to the Hazardous Materials;
(iii) Submit to LANDLORD immediately after receipt true and correct
copies of any notice, inquiry or order issued by any authority pursuant to
Governmental Regulations investigating or citing any actual or alleged failure
to comply with any Governmental Regulations respecting such Hazardous Materials,
or seeking any cessation of activity or any corrective action in connection with
the use, disposal, generation, transportation, storage, treatment or sale of
such Hazardous Materials; and
42
(iv) Within five (5) calendar days of LANDLORD'S request, submit written
reports to LANDLORD regarding TENANT'S use, disposal, generation,
transportation, storage, treatment or sale of Hazardous Materials and provide
evidence satisfactory to LANDLORD of TENANT'S compliance with all applicable
Governmental Regulations.
If TENANT keeps in, on or about the PREMISES, Common Areas and/or the
Shopping Center any Hazardous Materials for use, disposal, generation,
transportation, storage, treatment or sale, then, in addition to any and all
other conditions and restrictions which LANDLORD may impose, LANDLORD shall have
the right to require TENANT to purchase environmental impairment liability
insurance with a company or companies satisfactory to LANDLORD, affording
coverage of no less than One Million Dollars ($1,000,000.00) per occurrence or
such greater amount as LANDLORD shall determine in its sole discretion.
TENANT'S policy shall name LANDLORD, The Xxxxxxx X. Xxxxxx Group, Inc., and
LANDLORD'S management company (identified in Article 9, Section 2) as additional
insureds and shall bear endorsements to the effect that the insurer agrees to
notify LANDLORD not less than thirty (30) calendar days in advance of any
modifications or cancellation thereof.
TENANT shall be fully and completely liable to LANDLORD for any and all
cleanup costs to ensure that anything contaminated with or by the Hazardous
Materials be removed from the PREMISES, Common Areas and/or the Shopping Center,
and that the PREMISES, Common Areas and/or the Shopping Center be restored to a
clean, neat, attractive, healthy, sanitary and non-contaminated condition, and
any and all other charges, fees and penalties (civil and criminal) imposed by
any authority pursuant to Governmental Regulations with respect to TENANT'S use,
disposal, generation, transportation, storage, treatment or sale of Hazardous
Materials, in, on or about the PREMISES or the Shopping Center.
TENANT shall indemnify, defend and save LANDLORD, and its contractors,
agents, employees, partners, officers, directors and mortgagees, if any,
harmless from any and all of the costs, fees, penalties, liabilities, charges,
damages (including, without limitation, diminution in value), attorneys' fees
and other costs incurred or charged as a result of TENANT'S use, disposal,
generation, transportation, storage, treatment or sale of Hazardous Materials
including, without limitation, costs and expenses, incurred in connection with
any investigation of site conditions or any cleanup, remedial, removal or
restoration work to ensure that anything contaminated with or by the Hazardous
Materials be removed from the PREMISES, Common Areas and/or the Shopping Center,
and that the PREMISES, Common Areas and/or the Shopping Center be restored to a
clean, neat, attractive, healthy, sanitary and non-contaminated condition.
With respect to any known or subsequently discovered noncompliance by
TENANT with any Governmental Regulations regarding Hazardous Materials, and
without in any way limiting the scope of TENANT'S obligations under the
indemnification provisions of this Section, as between TENANT and LANDLORD,
TENANT will be responsible for all investigations, studies, cleanup, corrective
action or response or remedial action required by any local, state or federal
government agency now or hereafter authorized to regulate environmental matters,
or by any Governmental
43
Regulations; provided, however, that TENANT shall secure LANDLORD'S prior
written approval of any cleanup, corrective action or response o remedial
action that TENANT plans to conduct at the Shopping Center and TENANT shall
at its expense be responsible for hiring properly licensed contractors,
approved by LANDLORD and insured in accordance with LANDLORD'S requirements,
to complete such work. TENANT shall deliver copies of all licenses and
permits to LANDLORD. LANDLORD shall have the right to have a representative
present during such work and TENANT shall comply with all requirements of
LANDLORD with respect to such work. In the event TENANT fails to complete an
investigation or study and/or fails to cause the cleanup, corrective action
or response or remedial action to ensure that anything contaminated with or
by the Hazardous Materials be removed from the PREMISES, Common Areas and/or
the Shopping Center, and that the PREMISES, Common Areas and/or the Shopping
Center be restored to a clean, neat, attractive, healthy, sanitary and
non-contaminated condition, LANDLORD may perform such work at the expense of
TENANT, which sum will constitute Additional Rent payable by TENANT to
LANDLORD upon billing by LANDLORD.
Upon TENANT'S default under this Section, in addition to and
notwithstanding anything to the contrary set forth in this lease, LANDLORD shall
be entitled to the following rights and remedies:
(a) At LANDLORD'S option, to terminate this lease immediately (which
termination would not, however, terminate or diminish TENANT'S obligations and
liability under this Section 17); and
(b) To recover any and all damages associated with the default, including,
but not limited to cleanup costs (to ensure that anything contaminated with or
by the Hazardous Materials be removed from the PREMISES, Common Areas and/or the
Shopping Center, and that the PREMISES, Common Areas and/or the Shopping Center
be restored to a clean, neat, attractive, healthy, sanitary and non-contaminated
condition) and charges (including replacement of contaminated materials or
structures with new materials or structures, as the case may be), civil and
criminal penalties and fees, loss of business and sales by LANDLORD and other
tenants of the Shopping Center, diminution in value, any and all damages and
claims asserted by third parties and LANDLORD'S attorneys' fees and costs.
TENANT represents and warrants to and covenants with LANDLORD that all
materials used to construct the PREMISES and all equipment, trade fixtures and
personal property therein shall be completely free of asbestos and asbestos
containing materials (collectively "ACM") and that no part of the PREMISES,
including, but not limited to the walls, ceilings, flooring or pipes, shall be
wrapped, insulated, fireproofed, glued or surfaced with any ACM.
At the end of this lease, TENANT will surrender the PREMISES to LANDLORD
free of any and all Hazardous Materials (including ACM) and in compliance with
all Governmental Regulations regarding Hazardous Materials.
44
Any action, consent, review or inaction by LANDLORD under this Section 17,
including, but not limited to LANDLORD'S review or approval of: (i) TENANT'S
use, disposal, generation, transportation, storage, treatment or sale of
Hazardous Materials (as set forth on any Material Profile Sheet submitted by
TENANT); or (ii) any cleanup, corrective action or response or remedial action
that TENANT plans to conduct at the Shopping Center, shall create no
responsibility or liability on the part of LANDLORD for compliance with
Governmental Regulations nor shall LANDLORD be responsible or liable to perform
TENANT'S obligations under this Section 17, all of which shall be TENANT'S sole
responsibility.
SECTION 18. DISCOVERY OF ASBESTOS CONTAINING MATERIAL IN PREMISES
(a) In the event TENANT discovers asbestos containing material ("ACM") in
the PREMISES during its initial construction of the PREMISES pursuant to
Exhibits C and/or C-1 hereof, TENANT shall immediately cease any work which may
disturb the ACM and (no later than twenty-four [24] hours after such discovery)
notify LANDLORD. In the event the ACM was installed in the PREMISES by LANDLORD
or any predecessor in title and/or a prior tenant, other than TENANT (an
affiliate of TENANT, or an assignor from which TENANT has taken its interest),
LANDLORD shall, at its expense, remove, transport and dispose of the ACM or, at
LANDLORD'S option encapsulate the ACM, to the extent required by and in
accordance with all applicable Governmental Regulations (collectively called
"abatement"). In the event TENANT has not previously occupied the PREMISES, the
time period allocated for TENANT'S construction of the PREMISES, which is set
forth in Article 1, Section 1(e), and the Rent Commencement Date and attendant
obligations, shall be extended for the number of days equal to the number of
days from the date of TENANT'S notice through the date LANDLORD has completed
the removal of the ACM from the PREMISES or the encapsulation thereof to the
extent required by and in accordance with all applicable Governmental
Regulations. In the event TENANT'S construction is pursuant to Exhibit C-1 and
TENANT did not install such ACM in the PREMISES, TENANT shall receive an
abatement of Fixed Minimum Rent if TENANT is precluded from doing business
during the removal of the ACM from the PREMISES or the encapsulation thereof to
the extent required by and in accordance with all applicable Governmental
Regulations. TENANT agrees that LANDLORD'S liability to TENANT in connection
with the presence of ACM in the PREMISES shall be limited to the cost of
abatement, and TENANT hereby waives any claims against LANDLORD, and further
will indemnify LANDLORD and hold LANDLORD harmless from claims which might arise
from TENANT'S contractor(s) or otherwise for any delay in TENANT'S construction
schedule which is or might be attributable to LANDLORD'S compliance herewith.
LANDLORD shall notify TENANT or TENANT'S contractor of the projected completion
date of its work, or promptly upon completion thereof. For purposes of this
Section, notice shall be deemed delivered when given orally by LANDLORD or
TENANT to the other party; provided, however, that such notice shall thereafter
promptly be confirmed in writing.
(b) Subsequent to the initial construction required under Exhibits C
and/or C-1 hereof, if TENANT elects or is required to repair or make alterations
during the term of this lease, TENANT must give LANDLORD thirty (30) calendar
days prior notice of all such work by TENANT and
45
obtain LANDLORD'S consent where necessary under the terms of this lease. In
the event TENANT discovers ACM in the PREMISES, TENANT shall immediately
cease any work which may disturb the ACM and (no later than twenty-four [24]
hours after such discovery) notify LANDLORD.
(i) In the event TENANT'S work is pursuant to repairs which are mandatory
under this lease and the ACM was installed in the PREMISES by LANDLORD or any
predecessor in title and/or a prior tenant, other than TENANT (an affiliate of
TENANT, or an assignor from which TENANT has taken its interest), then LANDLORD
shall at its expense cause the abatement of the ACM.
(ii) In the event TENANT'S work is pursuant to (aa) repairs which are
mandatory under this lease and the ACM was installed in the PREMISES by TENANT
(an affiliate of TENANT, or an assignor from which TENANT has taken its
interest); (bb) voluntary alterations or voluntary remodeling of the PREMISES;
or (cc) in the event TENANT shall be vacating the PREMISES and there remains ACM
installed in the PREMISES by TENANT (an affiliate of TENANT, or an assignor from
which TENANT has taken its interest), then TENANT shall at its expense be
responsible for hiring properly licensed contractors, approved by LANDLORD and
insured in accordance with LANDLORD'S requirements, to cause the removal of the
ACM, and TENANT shall delivery copies of all licenses and permits to LANDLORD.
LANDLORD shall have the right to have a representative present during such
removal, and TENANT shall comply with all requirements of LANDLORD with respect
to such removal. In the event TENANT fails to cause the removal of such ACM,
LANDLORD may perform such removal at the expense of TENANT, which sum will
constitute Additional Rent payable by TENANT to LANDLORD upon billing by
LANDLORD and shall survive the termination, cancellation or surrender of this
lease.
(c) It is understood and agreed that neither (i) the presence of ACM in
the PREMISES, and/or the Shopping Center, nor (ii) the abatement of the ACM by
TENANT, by other tenants in the Shopping Center, or by LANDLORD shall be deemed
an eviction or disturbance of TENANT nor shall TENANT be entitled to an
abatement of Rent (except as otherwise set forth herein) or other damages for
any injury or inconvenience occasioned thereby. Any work undertaken by LANDLORD
as set forth above shall be undertaken in a manner so as to cause as little
inconvenience to TENANT as is reasonably possible.
SECTION 20. SURVIVAL
All obligations of TENANT under this lease shall survive the expiration or
earlier termination of this lease.
In Testimony Whereof, LANDLORD and TENANT have caused this lease to be
signed as of the day and year first above written.
Witnesses as to LANDLORD ___________________________
46
_________________________________ LANDLORD: Jefferson Mall Company
By: The Xxxxxxx X. Xxxxxx Group,
Inc., Agent
Witnesses as to TENANT By:________________________________
_________________________________ By_________________________________
_________________________________ TENANT: Active Ankle Systems, Inc.
____________________________________
____________________________________
State of Ohio )
) ss:
County of Cowhage )
Before me, a Notary Public, in and for said County and State, personally
appeared the above named _____________________________ and
___________________________, to me known to be the ____________________________
and __________________________ respectively of The Xxxxxxx X. Xxxxxx Group,
Inc., the corporation which executed the foregoing instrument, as Agent, who
acknowledged that they did sign the foregoing instrument for, and on behalf of
said corporation as such officers, respectively, being thereunto duly authorized
by its board of directors; that the same is their free act and deed as such
officers and the free act and deed of said corporation.
In Testimony Whereof, I have hereunto set my hand and official seal at
Cleveland, Ohio this ____ day of ______________, 19___.
____________________________________
NOTARY PUBLIC
____________________________________
Print, Type or Stamp Commissioned Name
MY COMMISSION EXPIRES:_____________
47
State of _____________)
) ss:
County of ___________ )
Before me, a Notary Public, in and for said County and State, personally
appeared the above named ____________________ and ______________________, to me
known to be the ___________________________ and _________________________
respectively of Active Ankle Systems, Inc., the corporation which executed the
foregoing instrument, who acknowledged that they did sign and seal the foregoing
instrument for, and on behalf of said corporation, being thereunto duly
authorized by its board of directors; that the same is their free act and deed
as such officers and the free act and deed of said corporation.
In Testimony Whereof, I have hereunto set my hand and official seal at
______________ ____________________________ this _____ day of
_______________________, 19____.
______________________________________
NOTARY PUBLIC
______________________________________
Print, Type or Stamp Commissioned Name
MY COMMISSION EXPIRES: ____________
48
ADDENDUM NO. 1
UTILITY SERVICES AND CHARGES
1. GAS SERVICE AND CHARGES. If the serving utility shall make gas
service available to the Shopping Center and TENANT has received LANDLORD'S
approval for gas usage, TENANT shall at its expense procure a meter from such
serving utility, furnish and install all required piping and equipment to extend
service from LANDLORD'S service point to the PREMISES and shall pay all charges
for such service directly to the serving utility. The design and method of
extension of service referred to herein shall be in accordance with all
governing building codes and subject to LANDLORD'S prior approval.
2. ELECTRICAL SERVICE AND CHARGES. TENANT shall install a complete
electrical distribution system and shall provide all equipment and fixtures
required for TENANT'S use strictly in accordance with the provisions of
Exhibit C. If the local serving utility shall directly serve the PREMISES with
electric service, TENANT shall, at its expense procure a meter from such serving
utility and shall pay all charges for such service directly to the serving
utility. If LANDLORD, who shall have the option to do so, shall elect to supply
electric service, TENANT shall purchase such service from LANDLORD and shall pay
LANDLORD therefor an Electrical Energy Service Charge based on TENANT'S
consumption at rates, including any established minimum rate or service charge,
that would be applicable if TENANT were obtaining electric service directly
from the serving utility. TENANT'S consumption of electrical service shall be
measured by one or more of the following methods, depending on the location of
the Shopping Center and the applicable utility laws and regulations: (i) by a
meter to be furnished and installed by LANDLORD and read monthly by LANDLORD,
(ii) by a meter to be furnished and installed by LANDLORD which shall be used
for check metering (monitoring) of electrical service, which may be undertaken
at the request of TENANT, but not more frequently than once a year, unless
TENANT has varied its equipment, service, use or load demand, or (iii) on the
basis of a load demand and usage to be determined by LANDLORD from an
Electrical Data Tabulation form to be provided in LANDLORD'S Drawings and
completed by TENANT. In the event that TENANT shall fail to complete the
aforesaid form, LANDLORD shall establish and TENANT hereby agrees to pay the
resulting Electrical Energy Service Charge. TENANT'S Electrical Energy Service
Charge, once determined shall be deemed to be Additional Rent and shall be
subject to adjustment as provided in Exhibit D. At its option, LANDLORD may
elect to provide monthly statements of TENANT'S Electrical Energy Service Charge
or may elect to establish an annual Electrical Energy Service Charge, in which
event TENANT shall pay to LANDLORD, on or before the first day of each month,
one twelfth (1/12) of such annual Electrical Energy Service Charge.
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3. WATER AND SEWER SERVICE CHARGES. In the event a local serving utility
shall provide water and/or sewer service directly to the PREMISES, TENANT shall
procure a meter from such serving utility and shall pay all charges (including
any and all tap-in or initial connection fees) for such service directly to the
serving to the PREMISES, pay an fees or charges on TENANT'S behalf, or in the
event that no water charges or sewer charges are levied or charged specifically
against the PREMISES, TENANT shall pay to LANDLORD water and/or sewer charges
(including any and all tap-in or initial connection fees) in an amount equal to
rates then in effect for the local serving utility based upon (i) the current
minimum demand rate, or (ii) at LANDLORD'S sole option, (a) consumption by
TENANT within the PREMISES determined by a meter utilized at such times and for
such periods as may be permitted by the local utility or (b) an alternate method
of calculating consumption applied uniformly to all Mall Store tenants receiving
such service.
4. TELEPHONE SERVICE AND CHARGES. If telephone service is desired,
TENANT shall be responsible for the obtaining and installation of such service,
equipment, and fixtures in accordance with the provisions of Exhibit C. If the
local serving utility shall directly serve the PREMISES with telephone service,
TENANT shall, at its expense, pay all charges for such service directly to the
serving utility. If LANDLORD, who shall have the option to do so, shall elect
to supply telephone service, TENANT shall purchase such service from LANDLORD
and shall pay to LANDLORD a Telephone Service Charge that would be similar to
that paid if TENANT were obtaining telephone service directly from the serving
utility. At its option, LANDLORD may elect to provide monthly statements of
TENANT'S Telephone Service Charge or may elect to establish an annual Telephone
Service Charge in which event TENANT shall pay to LANDLORD on or before the
first day of each month, one twelfth (1/12) of such annual Telephone Service
Charge.
50
ACTIVE ANKLE SYSTEMS, INC.
JEFFERSON MALL/UNIT #B316
DBA: ACTIVE ANKLE SYSTEMS
ADD: 00000070.BSH
ADDENDUM NO. 2
ADDENDUM TO ARTICLE 8, SECTION 3(G)
TENANT agrees to pay to LANDLORD as its advertising requirement, an amount
equivalent to Three Thousand One Hundred Eighty Seven and 08/100 Dollars
($3,187.08) per Lease Year and a proportionate part thereof for any Partial
Lease Year. Said amount shall be due and payable in equal monthly installments
of Two Hundred Sixty Five and 59/100 Dollars ($265.59) in advance on the first
day of each and every month during the term of this lease. Said amount shall be
adjusted at the end of the First Lease Year and annually thereafter in
accordance with the Consumer Price Index provision set forth in Article 5,
Section 5(b). Said amount shall be expended by or under the direction of
LANDLORD or its designated representative toward advertising and promotional
activities for the Shopping Center, as LANDLORD in it sole discretion shall
determine. TENANT understands that this covenant is a material consideration to
LANDLORD and agrees that in the event that TENANT fails or refuses to comply
with such minimum advertising requirement, recognizing the difficulty of
determining the actual damage sustained by LANDLORD and other merchants within
the Shopping Center, TENANT will pay to LANDLORD as liquidated damages to be
used for advertising and promotion, an amount equal to the unpaid amount
together with an amount equal to fifty percent (50%) of such unpaid advertising
contribution as an offset against XXXXXXXX'S administrative expenses resulting
from such failure to contribute for each time which TENANT failed or refused to
contribute as provided herein, such amount to be payable to LANDLORD upon
demand. In the event TENANT continuously fails or refuses to comply with such
minimum advertising requirement, LANDLORD shall be entitled to terminate this
lease. XXXXXX agrees to use the name of the Shopping Center to refer to the
location of the PREMISES in all local or metropolitan area advertising and
further agrees to include reference to the PREMISES in all advertisements in
which the identity of any other local business activity of like character
conducted by TENANT may be mentioned.
51
