SUMMARY/SIGNATURE PAGE FOR
COMMERCIAL LEASE
THIS COMMERCIAL LEASE consists of: (i) this Summary/Signature Page, (ii)
the 14-page General Provisions of the Lease, and (iii) Special Provisions,
consisting of two (2) pages, together with the attached Corporate or Personal
Guarantees and Exhibits (if any), all of which are hereby incorporated as an
integral part of this Lease.
CENTER: GRANDVIEW VILLAGE in the City of GRANDVIEW, State of MISSOURI.
THIS LEASE IF VOID, UNLESS EXECUTED BY BOTH PARTIES WITHIN TEN (10) DAYS FROM
THE FOLLOWING DATE: JULY 30, 1995.
LANDLORD NAME: X.X. Xxxxxxx Company
TENANT NAME: XXX XXXXX AND XXX XXXXXXX d/b/a Invision TYPE OF ENTITY: _______
FEDERAL TAX I.D. OR SOCIAL SECURITY NUMBER(S):_________________________________
TENANT'S HOME OFFICE ADDRESS___________________________________________________
ITEM 1. PREMISES: a retail space known as 11904 So. Blue Ridge Extension, in the
Grandview Village Shopping Center, Grandview, Missouri, containing
approximately 4, 085 square feet.
ITEM 2. APPROXIMATE TERM: two (2) YEARS, three (3) MONTHS AND no(0) DAYS.
POSSESSION DATE: AUGUST 1, 1995
COMMENCEMENT DATE: The EARLIER of November 1, 1995 or the date Tenant
opens for business in the Premises.
EXPIRATION DATE: October 31, 1997
ITEM 3. RENT: MINIMUM OR BASE RENT: $1,365.00 PER MONTH FROM COMMENCEMENT DATE
THROUGH October 31, 1997.
(SEE SPECIAL PROVISIONS RIDER FOR RENT ABATEMENT)
PERCENTAGE RENT (IF ANY): NONE percent.
ITEM 4. RECEIPTED SUM: $722.00, as initial rent/consideration for this Lease.
(Commencing November 1, 1996)
ITEM 5. PERMITTED USE: telephone marketing office
ITEM 7. ESTIMATED OPERATING COSTS FOR CALENDAR YEAR 1995: $722.00 PER MONTH
COMMENCING NOVEMBER 1, 1995.
ITEM 8. SECURITY DEPOSIT: $ NONE
ITEM 9. SECTIONS OF THE GENERAL PROVISIONS NOT APPLICABLE TO THIS LEASE AND
THEREFORE DELETED: 4.1, 4.2, 6.1, 6.2, & 7.2.
IN CONSIDERATION FOR the mutual benefits and obligations described herein,
the parties have executed and entered into this Lease by and through their duly
authorized representatives or agents intending to be legally bound.
TENANT: LANDLORD
X.X. XXXXXXX COMPANY
/s/ Xxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------- ------------------------------------
Xxx Xxxxx Xxxxxxx X. Xxxxxxx
Vice President
/s/ Xxx Xxxxxxx
---------------------------
Xxx Xxxxxxx
Date Signed: 8-2-95, 1995. Date Signed: August 3, 1995.
SPECIAL PROVISIONS RIDER
The provisions of this Rider are incorporated as an integral part of that
certain Lease dated August 3, 1995, by and between X.X. XXXXXXX COMPANY, as
landlord, and XXX XXXXX AND XXX XXXXXXX, as Tenant.
1. RENT ABATEMENT. (a) Except as otherwise provided in Subparagraph (b) below,
Tenant shall pay Landlord on the first day of each month, without notice or
demand, $1,365.00 per month as Base Rent specified in Item 3 of the
Summary/Signature Page.
(b) Notwithstanding the provisions in Subparagraph (a) above or elsewhere
in this Lease to the contrary, no Base Rent shall be payable for the months of
November, 1995, through and including October 1996 (the "Abatement Months");
provided that Tenant shall arrange to place all utilities serving the Premises
in its name effective on the earlier of August 1, 1995, or the date Tenant
receives the keys to the Premises; and provided further that Tenant continues to
fulfill all its other obligations under the Lease throughout the term. However,
the full amount of the Base Rent that would otherwise be due and payable during
the Abatement Months shall immediately become due and payable at Landlord's sole
option upon the occurrence of any event of default by Tenant under this Lease.
2. TENANT CONSTRUCTION. Except for Xxxxxxxx's work specified in Paragraph 3
below, Xxxxxx agrees to take the Premises and all existing improvements and
fixtures in their present condition, "AS IS" and without any improvements or
modifications of the part of Landlord. Tenant also agrees to perform or contract
for the interior renovation and updating of the Premises for Tenant's use, at
Tenant's sole cost and expense; provided that such work shall comply with all
applicable federal, state and local codes, statutes and regulations and that no
such renovation work shall be started unless or until: (a) Landlord has approved
in writing Tenant's plans and specifications for the work (for aesthetic and
non-code purposes), (b) Tenant and its contractor and subcontractors have
secured all necessary permits and approvals from the City of Grandview,
Missouri, and other applicable governmental authorities, and (c) Tenant has
furnished Landlord certificates of insurance naming Landlord as and additional
insured and evidencing coverage for worker's compensation and for liability
insurance in the minimum sum of FIVE HUNDRED THOUSAND DOLLARS ($500,000) for
bodily injury and ONE HUNDRED THOUSAND DOLLARS ($100,000) for property damage.
Tenant further covenants that, except for any good faith dispute, it will not
permit or suffer the filing of any claim for a mechanic's or materialmen's lien
against the property and that it will promptly pay when due all bills and
invoices for labor done and materials delivered to the Premises. The filing of
any notice to Landlord of any such lien shall constitute a default under this
Lease, unless or until Tenant secures its release of record (or posts with
Landlord an acceptable surety bond endorsement, letter of credit, or cash in the
minimum amount of 1 1/2 times the amount claimed by the mechanic or materialman)
within sixty (60) days after the filing of any such lien notice. In any event,
Xxxxxx shall defend, indemnify and hold harmless the Landlord from all costs
(including attorneys' fees) in connection with any and all such lien claims. In
no event and under no
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circumstances shall Tenant be deemed to be an agent or partner of Landlord for
purposes of improvements or otherwise.
3. XXXXXXXX'S WORK. Landlord shall arrange and pry for the remodeling of the
Premises using building standard materials as follows:
a) Install two restrooms in the existing rough-in locations within the
Premises.
b) Paint all existing perimeter walls a white egg color.
c) Confirm the existing air conditioning and electrical system is in
working order.
In the event of a default by Tenant under this Lease, then the unamortized
balance of Landlord's costs for such improvements [amortized at twelve percent
(12%) per annum over the twenty-four (24) month term of this Lease] shall
immediately become due and payable by Tenant as Additional Rent, notwithstanding
any other provisions herein.
4. SIGNAGE. All signage shall be the responsibility of Tenant and shall be
subject to Landlord's approval.
5. BROKERAGE. Tenant hereby acknowledges and understands that X.X. Xxxxxxx
Company ("Broker") and Xxxxxxx X. Xxxxxxx, Xx., its agent, have represented the
property owner in this transaction and that they do not (and have not purported
to) represent Tenant in any manner. Xxxxxxxx xxxxxx agrees to indemnify and hold
Xxxxxx harmless from all claims for a commission or finder's fee by said Xxxxxx
and its agents. Xxxxxx agrees to indemnify and hold Landlord harmless from all
other claims for a commission or finder's fee arising from contacts with Xxxxxx.
(Tenant) (Landlord)
X.X. XXXXXXX COMPANY
/s/ Xxx Xxxxx By /s/ Xxxxxxx X. Xxxxxxx
----------------------------- ------------------------------------
Xxx Xxxxx Xxxxxxx X. Xxxxxxx
Social Security # ###-##-#### Vice President
/s/Xxx Xxxxxxx
-----------------------------
Xxx Xxxxxxx
Social Security # 070 40-4401
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EXHIBIT A
[FLOOR PLAN]
GENERAL PROVISIONS OF THE LEASE
TABLE OF CONTENTS
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ARTICLE 1 LOCATION 1
Section 1.1 Premises 1
Section 1.2 Gross Rentable Area 1
Section 1.3 Center 1
ARTICLE 2 TERM 1
Section 2.1 Lease Year 1
Section 2.2 Early Commencement 1
Section 2.3 Delay of Commencement 1
ARTICLE 3 RENT 1
Section 3.1 Minimum and Percentage Rents 1
Section 3.2 Rent Escalation of Minimum or Base Rents 1
Section 3.3 Payment of Rent 1
ARTICLE 4 GROSS SALES 2
Section 4.1 Definition 2
Section 4.2 Annual Adjustment 2
ARTICLE 5 OPERATING COSTS 2
Section 5.1 Tenant's Pro Rata Portion 2
Section 5.2 Types of Expenses 2
Section 5.3 Real Estate - Related Expenses 3
Section 5.4 Special Allocations 3
Section 5.5 Operating Cost Exclusions 3
ARTICLE 6 VERIFICATION OF SALES 4
Section 6.1 Records 4
Section 6.2 Reports 4
ARTICLE 7 INITIAL RENT AND SECURITY DEPOSIT 4
Section 7.1 Receipt of Consideration 4
Section 7.2 Security Deposit 4
ARTICLE 8 OTHER CHARGES 4
Section 8.1 Late Charges and Interest 4
Section 8.2 Additional Rent 5
Section 8.3 Marketing Fund or Merchants' Association 5
ARTICLE 9 CARE OF PREMISES 5
Section 9.1 General Requirments 5
Section 9.2 Exterior of Premises 5
Section 9.3 Lienable Items 5
Section 9.4 Acceptance of Premises 5
Section 9.5 Parking and Loading 5
Section 9.6 Tenant Construction 5
Section 9.7 Signs and Accessories 5
ARTICLE 10 MAINTENANCE 6
Section 10.1 Interior 6
Section 10.2 Exterior 6
Section 10.3 Public Requirements 6
ARTICLE 11 ALTERATIONS AND ACCESS TO PREMISES 6
Section 11.1 Access to Premises 6
Section 11.2 Alterations and Improvements 6
ARTICLE 12 UTILITES AND SERVICES 6
Section 12.1 Utility Payments 6
Section 12.2 Metering or Pro Rata Allocations 6
Section 12.3 Termination of Utilites 6
ARTICLE 13 INSURANCE, INDEMNITY AND WAIVER OF SUBROGATION 6
Section 13.1 Liabilty and Worker's Compensation Insurance 6
Section 13.2 Fire and Casualty Insurance 7
Section 13.3 Other Requirements 7
Section 13.4 Tenant's Indemnification 7
Section 13.5 Landlord's Indemnification 7
Section 13.6 Waiver of Subrogation; Limits of Liabilty 7
Section 13.7 Electrical Installations 7
Section 13.8 Casualty 7
ARTICLE 14 EXAMINATION OF PREMISES AND LIMITATIONS OF LIABILITY 7
Section 14.1 Examination of Premises 7
Section 14.2 Assumption of Risks 8
Section 14.3 Tenant's Negligence 8
Section 14.4 Other Risks 8
ARTICLE 15 ASSIGNMENTS, SUBLEASE OR CHANGE OF MANAGEMENT CONTROL 8
Section 15.1 Consent to Transfer 8
Section 15.2 Request for Approval 8
Section 15.3 Landlord's Election 8
Section 15.4 Noncompliance 8
Section 15.5 Assumption of Lease 8
Section 15.6 Delay or Refusal 8
Section 15.7 Successors; Joint Liability 9
Section 15.8 Processing Charge 9
Section 15.9 Landlord's Comsideration 9
ARTICLE 16 USE AND OPERATION 9
Section 16.1 Permitted Use 9
Section 16.2 Business Hours and Continuous Operation 9
Section 16.3 Prior Vacation 10
ARTICLE 17 BANKRUPTCY AND INSOLVENCY 10
Section 17.1 Events of Bankruptcy or Insolvency 10
Section 17.2 Assignment of Lease 10
ARTICLE 18 FIXTURES AND PROPERTY REMOVAL 10
Section 18.1 Tenant's Property 10
Section 18.2 Landlord's Property 10
ARTICLE 19 LANDLORD'S LIEN, WAIVER AND SECURITY AGREEMENT 11
Section19.1 Landlord's Lien 11
Section 19.2 Optional Waiver 11
Section 19.3 Non-Waivable Security Interest 11
ARTICLE 20 EMINENT DOMAIN 11
Section 20.1 Effects of Condemnation 11
Section 20.2 Awards 11
ARTICLE 21 DEFAULT 11
Section 21.1 Events of Default 11
Section 21.2 Remedies 12
Section 21.3 Consequential Damages and Other Provisions 12
Section 21.4 Attorneys' Fees 12
Section 21.5 Waiver of Jury Trail 12
ARTICLE 22 SALE AND MORTGAGE OF THE PREMISES 12
Section 22.1 Mortgage 12
Section 22.2 Sale of Premises 12
Section 22.3 Estoppel Certificates 13
Section 22.4 Quiet Possession 13
ARTICLE 23 NOTICES AND SERVICE 13
Section 23.1 Receipt of Notice 13
Section 23.2 Consent to Service 13
ARTICLE 24 EXPIRATION OR TERMINATION 13
Section 24.1 Surrender of Premises 13
Section 24.2 Holding Over 13
Section 24.3 Re-Letting the Premises 13
ARTICLE 25 TIME AND FORCE MAJEURE 13
Section 25.1 Force Majeure 13
Section 25.2 Timely Performance 13
ARTICLE 26 REAL ESTATE LEASING COMMISSIONS 14
Section 26.1 Broker Contacts by Tenant 14
ARTICLE 27 INTERPRETATION AND CONSTRUCTION 14
Section 27.1 Reasonable Consents 14
Section 27.2 Waiver 14
Section 27.3 No Accord and Satisfaction 14
Section 27.4 Severability 14
Section 27.5 Automatic Termination 14
Section 27.6 Survival of Tenant's Obligations 14
Section 27.7 No Partnership 14
Section 27.8 Non-Binding Effects and Amendments 14
Section 27.9 Headings 14
Section 27.10 Entire Agreement; Amendments 14
Section 27.11 Integration 14
GENERAL PROVISIONS OF THE LEASE
Article 1
Location
Section 1.1. Premises. Landlord does hereby lease, demise, rent and let to
Tenant the described Premises, and Xxxxxx does hereby take and accept the same
subject to the conditions and covenants described herein. The "Premises" consist
of the commercial area within the shopping or business center described below at
the address listed on the Summary/Signature Page of this Lease. The Premises may
be more particularly described in drawings (if any) attached hereto or in the
Special Provisions of the Lease.
Section 1.2. Gross Rentable Area. The "Gross Rentable Area" of the Premises
shall mean the aggregate floor areas within the exterior faces of all exterior
walls, but only to the centerline of any common party walls between two leasable
areas, including the main floors, basements, mezzanines and upper floors, if
any, with no reductions or exclusions for stairways, elevators, escalators,
support columns, interior partitions or other improvements or equipment of any
kind. Further, the floor area of any mezzanines constructed within the Premises
shall be added to said Gross Rentable Area upon completion of construction. Any
changes in the Gross Rentable Area of the Premises occurring during any calendar
month shall become effective on the first day of the following month. The Gross
Rentable Area of the Center shall mean all similar areas within the Center owned
by Landlord and constructed for occupancy by tenants.
Section 1.3. Center. For purposes of this Lease, the "Center" shall mean
the shopping center, business park, commercial district or other designated
property owned by Landlord within geographic areas defined by Landlord from time
to time, including (without limitations) all buildings, improvements and parking
facilities (including any off-site or satellite parking facilities), private
drives, sidewalks and alleys [but excluding public streets, rights-of-way,
utility lines, easements and parks to the extent (if any) maintained by local
public authorities]. The Center shall also include any and all fountains,
statuary, monument markets and entryways, towers, kiosks, murals and art works
(if any), together with all private courtyards, lawns, median strips and parks.
Article 2
Term
Section 2.1. Lease Year. Except as provided in Sections 2.2 and 2.3 below,
the "Term" of this Lease, the "Commencement Date" and Expiration Date" shall be
as specified in Item 2 of the Summary/Signature Page. A "Lease Year" shall mean
the period of twelve (12) consecutive months beginning with the Commencement
Date and extending to each anniversary of the Commencement Date; but, if the
Commencement Date should be any day other than the first day of the month, the
Lease Year shall begin on the first day of the following month, and the
scheduled Expiration Date of this Lease shall always be the last day of the
month.
Section 2.2. Early Commencement. If for any reason and with Xxxxxxxx's
approval in all respects Tenant should occupy and open for business in the
Premises prior to the scheduled Commencement Date, all terms of this Lease shall
then and there take effect, and the rents and charges hereunder shall commence
immediately (prorated on a daily basis, if commenced on a day other than the
first of the month), unless otherwise provided in the Special Provisions of this
Lease.
Section 2.3. Delay of Commencement. In the event Landlord is unable to give
Tenant possession of the Premises for any reason at the time specified in Item 2
of the Summary/Signature Page of this Lease, then the Commencement Date shall be
postponed and the Term shall be extended commensurate with the period of delay
in possession. Landlord shall determine when the Premises are reasonably ready
for occupancy, and in no event shall Landlord have any liability for damages (if
any) to Tenant on account of any delays in delivering possession of the
Premises.
Article 3
Rent
Section 3.1. Minimum Rents. For the use and availability of the Premises,
Tenant shall pay Landlord each month throughout the Term of this Lease:
(a) The Minimum or Base Rents prescribed in Item 3 of the Summary/Signature
Page of this Lease (prorated on a daily basis for any partial month); plus
(b) The amount (if any) by which the percentage(s) of Tenant's Gross Sales
of Merchandise stipulated in Item 3 of the Summary/Signature Page exceeds the
Minimum Rent for the applicable period, subject to annual adjustment based upon
the Lease Year as provided in Section 4.2 below.
Section 3.2. Rent Escalation of Minimum or Base Rents. (a)
(b) Upon each Assignment of this Lease or Sublease of the Premises, the
Minimum or Base Rents shall also be increased (if necessary), so that said
Minimum or Base Rents are no less than eighty percent (80%) of the aggregate of
the Minimum or Base Rents payable during the pervious Lease Year in any event.
Section 3.3. Payment of Rent. Tenant shall pay all sums required to be paid
to Landlord promptly without prior notice or demand at the office of X.X.
Xxxxxxx Company, 000 Xxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or at such other
place as Landlord may designate from time to time in writing. Minimum or Base
Rents shall be payable monthly, in advance, on the Commencement Date and on the
first (1st) day of each successive month throughout the Lease Term. Tenant shall
pay as "Additional Rent" all other charges or sums of money required to be paid
by Tenant under this Lease. All sums required to be paid pursuant to this Lease
shall be paid independently of and without regard for any obligation on the part
of Landlord and without any right of set-off or deduction whatsoever. Rents
shall be prorated on a daily basis for any partial calendar months.
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Article 5
Operating Costs
Section 5.1. Tenant's Pro Rate Portion. (a) In addition to the Percentage
and Minimum or Base Rents, Xxxxxx agrees to pay a "Pro Rata Portion" of the
Operating Costs of the Center, computed as of January 1st of each year and
prorated on a daily basis for any partial Lease Year. For purposes of this
Article, the following phrases have the following meanings:
(i) "Pro Rata Portion" shall mean the percentage determined by
dividing the Gross Rentable Area of the Premises by the Gross Rentable Area
of the Center; and
(ii) "Net Costs" shall mean Landlord's costs and expenses incurred in
the operation of the Center as described in Section 5.2 below.
(b) Tenant's Pro Rata Portion of such Operating Costs shall be estimated at
the beginning of the Term and annually thereafter. Tenant shall pay the
estimated Pro Rata Portion in equal monthly installments on or before the first
day of each month, or within ten (10) days thereafter, throughout the Lease Term
or until notice of a new monthly estimate. Within sixty (60) days after the end
of each calendar year, Landlord shall determine its actual Net Costs for the
previous calendar year (and Tenant's Pro Rata Portion thereof) and shall furnish
a copy of such computations and an itemized statement of such costs in writing
to Tenant. If the estimated monthly payments made by Tenant for the previous
calendar year exceed Xxxxxx's actual Pro Rata Portion of such Net Costs,
Landlord shall rebate the excess to Tenant; but if Tenant's actual Pro Rata
Portion exceeds the estimated monthly payments made by Tenant for the previous
calendar year, Tenant shall pay the difference within thirty (30) days after
annual adjustment billing by Landlord. Tenant's obligation to pay actual Net
Costs in excess of those estimated shall survive the expiration of this Lease,
together with Xxxxxx's obligation to pay all other accrued sums due hereunder,
and the accrual of any such excess actual Net Costs shall relate back in equal
monthly installments over the calendar year period. Landlord shall provide
Tenant copies of supporting documentation substantiating its Net Costs upon
request by Xxxxxx.
Section 5.2. Types of Expenses. Landlord will provide for the maintenance,
repair, operation and management of the Center outside the Premises, including
all facilities, improvements and areas determined by Landlord from time to time
to comprise the Center. Tenant agrees to pay a Pro Rata Portion of all such
costs (hereafter referred to as "Operating Costs") which, for purposes of this
Lease, shall include, but not be limited to, the costs and expenses of items
such as those described below:
(a) Snow removal; maintenance, repair and replacement of all parking lot
structures and surfaces (whether surface parking or multi-level garages),
service areas and courts, including cleaning, sweeping, painting, striping and
repaving; maintenance and repair of sidewalks, access roads, pathways, grass
plots, plantings, curbs, guardrails, bumpers, fences, screens, monuments,
towers, markers, plaques, murals, fountains, statues, art works, banners,
flagpoles, bicycle racks, decorative newspaper vending racks, signs of all
kinds, kiosks, traffic signals and other traffic markers;
(b) Maintenance, repair and capital improvement of all structures,
facilities, systems and equipment of the Center, including (without limitation):
(i) the storm sewer and sanitary drainage systems, including disposal plants,
lift stations and retention ponds or basins; (ii) automatic sprinkling and
irrigation systems; (iii) electrical, gas and waters systems; (iv) exterior
lighting, light poles and bulbs, street lights, lanterns, fixtures and other
lighting systems; (v) music, sound and speaker systems and equipment; (vi)
heating, ventilating and air-conditioning systems; (vii) security systems,
vehicles, radios and other equipment; and (viii) paving, curbs, walkways, roofs,
building exteriors, ceilings and structural supports;
(c) Planting, replanting and replacing flowers, shrubbery, plants, grasses,
trees and other landscaping, including those in walkways, median strips,
courtyards and alleys;
(d) Maintenance, operation, repair, janitorial services, supplies and
utilities for the Center including, but not limited to, roofs, roof flashing,
parking lot control, canopies, skylights, walkways, courts, and alleys, signs,
retaining walls, ornaments, statuary, planters, benches, fountains, loading
docks, stairs, fire exits, doors and hardware and all other areas and
improvements; and charges for electricity, gas, water and sewer services to
common areas of the Center;
(e) Premiums for insurance coverage of all kinds, including, without
limitation, liability insurance for personal injury, death and property damage,
including excess liability coverage (if any); insurance against liability for
defamation and claims of false arrest occurring in and about the Center;
worker's compensation; broad form casualty and all-peril insurance, which may
include (without limitation) flood insurance, glass insurance, earthquake
insurance, parking garage insurance, boiler insurance and rent insurance;
(f) Maintenance and repair of all vehicles, security devices, machinery and
equipment used in the operation and maintenance of the Center and all license
fees, personal property taxes and other charges incurred in connection with such
vehicles, security devices, machinery and equipment, together with the costs of
employing personnel for security and parking control purposes (if Landlord
elects to provide such services);
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(g) Governmental licenses and permit fees of every kind and nature, and all
surcharges and other cost that result from complying with environmental or other
governmental laws, rules, regulations, guidelines or orders;
(h) Installing and operating music programs, services and loudspeaker
systems, together with the costs of applicable dues and fees payable to
organizations formed to act as agents for songwriters and performers in
enforcing their clients' copyrights;
(i) Personnel salaries and related taxes and employment benefits for
on-site property management, security and maintenance employees;
(j) Users fees, taxes, assessments, special assessments, substitution
taxes, gross receipts taxes, taxes on rents and other governmental charges,
whether levied by federal, state, county, municipal or any other taxing
authority, which are charged against the Center, real property, street lights,
fixtures, personal property, rents or on the right or privilege of owning or
leasing real estate or collecting rents thereon, and any other taxes,
assessments and fees attributable to the Center or its operation whether now or
hereafter assessed, including (without limitation) the other types of taxes
described in Section 5.3 below; and
(k) Property management and off-site administrative, supervisory and
overhead costs, whether payable to third party or to Landlord or its affiliates,
as compensation for administrative, accounting, bookkeeping and property
management services for the Center; provided that the amount of such costs and
expenses shall not exceed the fees that third-party professional management
companies would charge for managing similar properties in the metropolitan area.
Section 5.3. Real Estate-Related Taxes.
(a) Except as provided in Subsection (b) below, the following kinds of
taxes are expressly included among those assessable to Tenant as part of the
Operating Costs of the Center:
(i) Special Assessments. The Operating Costs shall include "Special
Assessments" imposed upon the Premises or Center by a governmental
authority for improvements directly or indirectly benefiting the Premises
or Center, including (without limitation): (a) assessments for utility
improvements serving the Premises or Center; (b) "transportation
assessments"; (c) "impact fees" for public improvements; and (d) "benefit
assessments" for such things as flood control, street and sidewalk
improvements, and refuse and sewer treatment. Special Assessments shall not
include other capital expenditures relating to new improvements, the net
effect of which is to finance or construct other commercial developments
for or on behalf of Landlord, or which expand or increase the Gross
Rentable Area of the Center. Nor shall Special Assessments include sewer
hook-up fees or similar charges assessed to one specific user.
(ii) Taxes Payable in Installments. In the event that any Taxes may,
or are required to, be paid in installments over a period longer than one
(1) year, then the same shall be deemed paid in installments over the
maximum period permitted by the taxing authority, and Tenant's obligation
to pay its Pro Rata Portion of such Taxes for any one (1) tax fiscal year
shall only apply to those installments which actually become due and
payable (i.e., failing which, payment of the same would become delinquent),
together with the interest charged thereon by the taxing authority, during
that same fiscal year, EXCEPT, HOWEVER, that Tenant shall not be obligated
to pay any portion of Taxes or installments thereof which actually become
due and payable during any period prior or subsequent to the Lease Term.
Taxes for any fraction of a tax year at the commencement or expiration of
the Lease Term shall be apportioned pro rata on a daily basis between the
parties.
(iii) Substitution Taxes. A "Substitution Tax" means a fee, charge or
levy, which is enacted on a Substitution Basis (as defined below),
following a change in a method of taxation or assessment related to real
property, or the granting of tax benefits or reductions for the property,
including (without limitation) payments in lieu of taxes following approval
of plans for tax increment financing, urban redevelopment or other tax
benefits. A change in such methods may refer to an event or combination of
events by which real estate taxes, assessments or valuations are "frozen"
[i.e., no longer increased], and/or reduced or "rolled back," and/or future
increases are limited in amount, by statute. If, following such change and
as a result thereof, there shall be levied, assessed or imposed: (a) a tax
on the rents received from the Premises; (b) a license fee or other tax
measured by or based wholly or partially upon the Premises or any portion
thereof, and which taxes are expressly declared by the taxing legislation,
legislative history or taxing authority to be imposed as a result of the
foregoing limitations on real estate taxes, or in substitution therefor,
then such resultant enactment shall be on a "Substitution Basis." All other
provisions of this Lease notwithstanding, the term Substitution Taxes shall
also include fees paid to property tax consultants, on a contingency basis
for securing reductions in tax assessments.
(b) Exclusions. The term "Taxes" shall not, however, include corporation,
inheritance, estate, succession, transfer, realty transfer gains taxes, gift,
franchise, income or profit taxes (whether gross or net) imposed upon Landlord;
nor shall Taxes include business or gross receipts taxes, except to the extent
based purely on rentals receivable from real estate unless the same are enacted
on a Substitution Basis. Further, Taxes shall not include penalties or interest
on Taxes caused by the failure of Landlord to make timely payment (and not due
to any failure of Tenant to make timely payment of Tenant's Pro Rata Portion of
Taxes to Landlord), nor shall Taxes include mortgage lien taxes, documentary
stamp taxes, recording fees or the like.
Section 5.4. Special Allocations. Notwithstanding the general allocation of
Operating Costs as described in Section 5.1 above, Landlord shall have the
option in its discretion to make special allocations of certain Operating Costs
and assess the same among particular tenants, as follows:
(a) Charges for utility service and usage (where the utility is not
separately metered) may be allocated and billed "pro rata" on a gross leasable
square footage basis amount those tenants whose premises utilize a common
utility system; and
(b) If the Center consists of more than one tax parcel, real estate taxes
may be allocated and billed "pro rata" on a gross square foot basis among those
tenants whose premises are situated within the same tax parcel.
Section 5.5. Operating Cost Exclusions. Notwithstanding Sections 5.1 and
5.4 above, the following items shall be excluded in calculating the total
Operating Costs of the Center:
(a) Costs of repairs, replacements or utility services for which other
tenants pay, or are obligated to pay, or for which Landlord received insurance
proceeds or condemnation awards;
(b) Leasing commissions, legal fees and other expenses incurred by Xxxxxxxx
in dealings with other tenants and prospective tenants, and costs to improve or
make space "tenant-ready";
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(c) The costs of any special services, operations or accommodations for the
benefit of specified tenants (as opposed to all tenants of the Center and their
customers or the public generally);
(d) The costs of governmental compliance, remediation of hazardous
materials, and capital improvements relating to buildings and premises available
for lease to tenants or which expand or increase the Gross Rentable Area of the
Center; and
(e) The costs of governmental compliance, remediation of hazardous
materials, and capital improvements relating to any other facilities, structures
or improvements in the Center, including parking facilities and ornamental
structures or other improvements in public or common areas or not comprising
premises available for lease, except to the extent that such costs are
deductible in the current year on a straight-line basis in accordance with
generally accepted accounting practices.
Article 7
Initial Rent and Security Deposit
Section 7.1. Receipt of Consideration. The Receipted Sum in Item 4 of the
Summary/Signature Page of this Lease constitutes a payment of the Minimum or
Base Rents and/or other sums required to be paid by Tenant, as consideration for
this Lease. And in the event no Receipted Sum is submitted by Tenant or required
by Landlord, this Lease shall be voidable at Landlord's sole option and
discretion until such time as Tenant pays and Landlord accepts such an initial
payment of rent, notwithstanding any other provisions of this Lease or other
agreements of the parties.
Article 8
Other Charges
Section 8.1. Late Charges and Interest. In the event Tenant fails to pay
any sum of money required under this Lease within fifteen (15) days of the
stipulated due date, then Tenant shall pay Landlord a late charge equal to Ten
Dollars ($10.00) per day from the due date until all delinquent sums (regardless
of amount) are paid in full, plus interest on all such delinquent sums at
fifteen percent (15%) per annum or the maximum rate allowable by law, whichever
is less, likewise commencing from the original due date and continuing until all
such delinquent sums are paid in full. The foregoing daily late charges and all
others prescribed in this Lease are intended to offset Landlord's unanticipated
administrative costs associated with delinquencies, including (but not limited
to) the costs of additional direct contacts and correspondence with principals
and employees of Tenant, investigators, credit reporting agencies, attorneys,
collection agencies, bookkeepers and accountants, as well as referral and
contingent fees to collection agencies, among others. The parties agree that the
precise amounts of all such unanticipated costs would be difficult, if not
impossible, to ascertain in advance and that the late charges described in this
Section and elsewhere in this Lease are therefore a reasonable approximation of
such costs in the nature of liquidated damages and shall be payable to Landlord
in addition to all other rental obligations hereunder. No such late charges,
however, are intended, nor shall be deemed, to cover
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any consequential damages arising from Tenant's breach of this Lease, or the
unamortized balance of the costs of any improvements made by Landlord to
accommodate Tenant's occupancy, or any clean-up or repair costs or other
expenses suffered by Landlord as a result of any physical damage to the Premises
or other property caused by Tenant or its employees, contractors or agents.
Section 8.2. Additional Rent. Any and all charges required to be paid by
Tenant to Landlord or other persons or entities hereunder, other than the
Minimum or Base Rents, shall be considered Additional Rent, including (without
limitation) the charges described in Sections 5.2, 6.2, 7.2, 8.1, 8.3, 9.5,
11.1, 12.1, 15.8, 21.2, 21.3, 21.4 and 22.3. And a default in the payment of any
such sums shall be subject to the assessment of late charges and shall be a
default under this Lease.
Section 8.3. Marketing Fund or Merchants' Association. If Landlord at any
time during the Lease Term organizes or approves the organization of an
association of merchants or tenants of the Center, or, alternatively, if
Landlord establishes or approves the establishment of a marketing fund for the
Center, Tenant agrees to maintain a membership in said association or to
actively participate in and contribute to such marketing fund, promptly paying
dues and assessments for such association or marketing fund, whether determined
by Landlord, an advisory board or a board of directors. Such dues or assessments
shall also be Additional Rent hereunder, and Xxxxxx's failure to pay the same
when due shall constitute a default under this Lease, whether payable directly
to Landlord or to a separate association or marketing fund administrator.
Article 9
Care of Premises
Section 9.1. General Requirements. Tenant shall not perform any acts or
carry on any practices which may damage the Center, the building that houses the
Premises or the Premises, or are a nuisance to the public or other tenants in
the Center. Tenant shall keep the Premises clean and free from rubbish, dirt,
insects, rodents and other vermin at all times; and, if Landlord deems
necessary, Tenant shall join with Landlord and other tenants and pay a
proportionate share of the expenses of a general extermination from time to
time. Tenant shall not use or permit the use of any portion of the Premises as
sleeping quarters, for lodging of any kind, for cooking (unless permitted
pursuant to Article 16), for any unlawful purposes, or any other use or uses not
expressly permitted under this Lease. If Tenant is permitted under this Lease to
handle foodstuffs, garbage and refuse shall be removed in leak-proof containers;
and, if there should be any leakage, Tenant shall clean and remove any evidence
of such leakage at its expense. Tenant shall also keep all sewer lines serving
the Premises in free and clear condition. Tenant shall maintain the public
entryways and display or store windows in a neat and clean condition. Tenant
shall not burn trash of any kind in or about the building or Premises.
Section 9.2. Exterior of Premises. Except for Xxxxxx's initial construction
work, Tenant shall not paint or decorate any part of the exterior of the
Premises, display merchandise outside the Premises, or attach or install
awnings, signs, equipment or improvements of any kind on the roof or exterior of
the building or Premises without Landlord's expressed written permission in each
instance in its sole and absolute discretion. Xxxxxx agrees not to use any area
outside the Premises for the sale or display of merchandise or equipment, or for
any other business, occupation or undertaking. Xxxxxx further agrees to receive
and ship articles only through the rear door of the Premises or other loading
areas designated by Landlord.
Section 9.3. Lienable Items. In no event shall any materials or equipment
which are subject to any lien, encumbrance or security interest be incorporated
in or affixed to the Premises without the expressed written permission of
Landlord; provided that Tenant may install its own movable equipment,
furnishings, inventory and other personal property on the Premises without
Landlord's consent. Under not circumstances shall Tenant ever permit any lien
for labor, services or materials claimed to have been performed for or furnished
to Tenant, its agents, contractors or subcontractors, to be filed against the
Premises, the building that houses the Premises, or the Center. If notice of any
such lien is filed, Tenant shall discharge such lien within ten (10) days;
provided that, if Tenant in good faith desires to contest the validity of any
such lien, it may do so by appropriate legal proceedings after first depositing
with Landlord, within ten (10) days after the filing of such lien notice, a
surety bond, cash or an unconditional letter of credit in the sum of one hundred
fifty percent (150%) of the lien, or such other security as Landlord, in its
sole judgment, deems sufficient to insure payment and discharge of such lien,
together with interest and penalties thereon. In any such event, Tenant shall
defend, indemnify and hold harmless Landlord from all costs and expenses,
including court costs and reasonable attorneys' fees, in connection with work
and improvements allegedly ordered or contracted by Tenant or its agents,
contractors, subcontractors and employees. If Tenant fails to discharge any such
lien or deposit the required security within such ten (10) day period, Landlord
may (but shall not be obligated to) pay and discharge such lien without
inquiring into the validity thereof, and Tenant shall, upon demand and as
Additional Rent, reimburse Landlord for the full amount so paid, including
attorneys' fees, regardless of whether or not such lien is valid. For its breach
of any obligations herein, Tenant shall be deemed to be in default under this
Lease. Nothing in this Lease or Landlord's approval of Xxxxxx's plans for
construction or improvements in the Premises shall in any way be construed to
constitute a consent, order or request by Xxxxxxxx, expressed or implied, by
inference or otherwise, for any contractor, subcontractor, laborer or
materialman, to perform labor or furnish materials for any specific improvement,
alteration or repair to the Premises or the building or any improvements
thereon.
Section 9.4. Acceptance of Premises. By occupying the Premises, Xxxxxx
formally accepts the same in their present condition, "as is" and acknowledges
that Landlord has complied with all requirements imposed upon it under this
Lease. No minor change, alteration or variance from plans upon which the parties
have agreed shall change or otherwise affect this Lease.
Section 9.5. Parking and Loading. Tenant and its employees shall park their
cars and other motorized and non-motorized vehicles in areas as designated by
Landlord from time to time. Tenant shall also furnish the state automobile
license numbers assigned to its vehicles and those of all its employees and the
name and home addresses of such employees within five (5) days after written
notice from Landlord. Following at least one (1) prior written notice of
violation, Tenant shall pay Landlord, when billed, a fee of Ten Dollars ($10.00)
per day per vehicle parked in violation of this Section.
Section 9.6. Tenant Construction. Tenant may from time to time perform or
contract for the interior renovation and updating of the Premises for Tenant's
use, at Tenant's sole cost and expense; provided that such work shall comply
with all applicable federal, state and local codes, statutes and regulations and
that no such renovation work shall be started unless or until: (a) Landlord has
approved in writing Tenant's plans and specifications for the work (for
aesthetic and non-code purposes); (b) Tenant and its contractor and
subcontractors have secured all necessary permits and approvals from the all
applicable governmental authorities; and (c) Tenant has furnished Landlord
certificates of insurance naming Landlord as an additional insured and
evidencing coverage for worker's compensation and for liability insurance. The
limits of such coverage shall be not less than Five Hundred Thousand Dollars
($500,000.00) each occurrence [combined single limit bodily injury, property
damage, products/completed operations aggregate, personal and advertising
injury, general aggregate, fire damage and medical expenses]. Tenant further
covenants that, except for any good faith dispute, it will not permit or suffer
the filing of any claim for a mechanic's or materialmen's lien against the
property and that it will promptly pay when due all bills and invoices for labor
done and materials delivered to the Premises.
Section 9.7. Signs and Accessories. No mechanical signs, neon signs, signs
with flashing lights, or signs illuminated in any other manner shall be placed
on the exterior of the Premises or within twelve (12) inches of the windows or
doors to the Premises. Further, Tenant shall not place any signs, placards or
advertising media on the exterior of the Premises or on [or within six inches
(6") of] the windows or doors to the Premises; nor shall Tenant place or install
speakers, recording devices, stereos, radios, television monitors, video
equipment or other media visible in windows or doors to the Premises or audible
outside the Premises -- without Landlord's prior written
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consent in each instance in its sole and absolute discretion. No lighting or
plumbing fixtures, awnings or other ornamentation or decorations may be
installed on the exterior of the Premises, nor may Tenant paint the exterior of
the Premises, without similar prior written consent from Landlord. Tenant may
place its store name and business hours on the entry doors to the Premises in
lettering no more than three (3) inches in height.
Article 10
Maintenance
Section 10.1. Interior. Tenant agrees to maintain the Premises and keep it
in good repair, including interior cleaning, painting and decorating of every
kind, and to replace the fixtures and equipment within the Premises as necessary
including (but not limited to) heating and air-conditioning equipment, lighting
and electrical fixtures (including light bulbs), plumbing fixtures and
equipment, hardware, floor coverings, doors, windows and broken or damaged
glass, specifically including safety or plate glass display windows, together
with those portions of the storefront and other exterior improvements (if any)
originally installed by Tenant.
Section 10.2. Exterior. Tenant shall not install equipment of any kind on
the roof or exterior of the Premises without prior written approval of Landlord;
and Tenant shall pay for any and all damage resulting from such installations,
together with the costs of removal, maintenance or lack of maintenance thereof.
Section 10.3. Public Requirements. Tenant shall comply with all laws,
orders, ordinances and other public requirements now or hereafter affecting the
cleanliness, health, safety, occupancy or use of the Premises and the physical
accommodations, facilities and equipment therein (including, without limitation,
the doors for ingress and egress to and from the Premises and the plumbing
fixtures and sewer line), and Tenant shall indemnify and save Landlord harmless
from all costs, expenses or damages resulting from failure to do so. Landlord
shall be responsible for compliance with all such public requirements in the
common areas of the Center outside the Premises, and Landlord shall indemnify
and save Tenant harmless from all costs, expenses or damages resulting form
Landlord's failure to comply with such requirements.
Article 11
Alterations and Access to Premises
Section 11.1. Access to Premises. Landlord shall have the right, if it so
elects, to enter upon the Premises at reasonable hours, with advance notice to
Tenant except in emergencies, for the purpose of inspecting the same,
determining Tenant's compliance with this Lease, repairing or maintaining any
pipes, conduits or ducts (whether same are used in the supply of services to
Tenant or to other occupants of the building or adjacent buildings) or in
connection with construction work or any other improvements, repairs or
alterations in and about the building. If Landlord deems it necessary to make
and repairs or replacements necessary for which Tenant is responsible under this
Lease, Landlord may demand in writing that Tenant make the same, and if Tenant
refuses or neglects to commence such repairs or replacements in good faith or
fails to complete the same with reasonable dispatch, Landlord may make or cause
such repairs or replacements to be made; and, in so doing, Landlord shall not be
responsible to Tenant for any loss or damage that may accrue to Tenant's
business by reason thereof. If Landlord makes or causes such repairs or
replacements to be made, Tenant shall forthwith pay landlord upon demand the
full costs thereof as Additional Rent hereunder with late charges and interest
as prescribed in Section 8.1 above; and, if Tenant shall default in such
payment, Landlord shall have all the remedies provided in Article 21 and
elsewhere in this Lease.
Section 11.2. Alterations and Improvements. Landlord reserves the right at
any time to build additional stories upon and/or to otherwise expand the
building that houses the Premises. Landlord further reserves the right to close
skylights, windows or doors of the Premises and to run pipes, conduits, ducts or
electrical lines through the Premises; and to alter the size, area, level and
location of hallways, entrances, parking areas, common areas of the Center
reserved for general usage, driveways, sidewalks, landscaped areas and all other
portions of the Center. Landlord shall also have the right to close the
Premises, the building which houses the Premises or any portions of the Center,
whenever necessary to comply with any law or regulation issued by any lawful
authority, in cases of public disturbance, or for any other reasons deemed right
and proper in its discretion, and Tenant hereby waives all claims for damage or
inconvenience caused by any such closings.
Article 12
Utilities and Services
Section 12.1. Utility Payments. Tenant agrees to pay or reimburse Landlord
for all electric current, gas, water and other utility services, whether
furnished to the Premises by utility companies or by Landlord, and in any event
Tenant shall furnish and pay for heating and air-conditioning equipment and
service to the Premises. Such utility services (if any) actually furnished by
Landlord shall be billed at rates not exceeding those charged by applicable
utility companies; provided that Landlord may allocate such xxxxxxxx on a
square-foot basis unless service is separately metered or submetered.
Section 12.2. Metering or Pro Rata Allocations. Landlord or Tenant may
install separate meters or submeters on or about the Premises, or Tenant shall
utilize existing separate meters or submeters (if any) already in place; and
Tenant shall pay any such separately metered utility charges attributable to the
Premises including (without limitation) charges for electricity, gas and water,
directly to the appropriate municipality, utility or service company, or shall
reimburse Landlord for such charges based on submeter readings. The costs for
heating and cooling the Premises [from any central boiler or heating,
ventilating and air-conditioning (HVAC) system serving the building], plus all
other utility services furnished by Landlord, and not separately metered or
submetered, shall be allocated by Landlord and be payable by Tenant on the basis
of Tenant's "Pro Rata Portion" of the gross floor space of the Center or those
portions of the Center which utilize a common utility system, as provided in
Sections 5.1 or 5.4 above.
Section 12.3. Termination of Utilities. Landlord shall not in any way be
responsible or liable to Tenant, or to any other party occupying any part of the
Premises, for any failure or defect in the supply or character of water,
electric energy or any other utility service furnished to the Premises or to the
common areas of the Center (whether furnished by Landlord or by others), or by
reason of any requirement, act or omission of the public utility company serving
the Premises, the building that houses the premises or the Center with
electricity, water or other utility service, or because of necessary repairs or
improvements or the lack thereof.
Article 13
Insurance, Indemnity and Waiver of Subrogation
Section 13.1. Liability and Worker's Compensation Insurance. (a) Tenant
shall keep in force policies of comprehensive public liability insurance, with
respect to the Premises and the businesses operated by Tenant and any other
occupant. The limits of such coverage shall be not less than Five Hundred
Thousand Dollars ($500,000) each occurrence [combined single limit for bodily
injury, property damage, products/completed operations aggregate, personal and
advertising injury, general aggregate, fire damage and medical expenses]. In
addition to Tenant, the policy shall name Landlord and any lenders or mortgagees
designated by Landlord as additional insureds.
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(b) Tenant's employees and any and all contractors, subcontractors and
their agents and employees shall also be covered under worker's compensation
insurance in the minimum amounts required by law, and Tenant shall deliver to
Landlord certificates evidencing such coverage upon request and prior to the
start of any leasehold construction or improvements by Tenant.
Section 13.2. Fire and Casualty Insurance. Tenant shall also keep in force
a broad form "all risk" fire and casualty insurance policy (with extended
coverage, vandalism, malicious mischief, water damage and sprinkler leakage
coverage) on the standard forms, insuring all improvements and betterments on
the Premises in an amount equal to their full replacement costs. During the
course of Tenant's construction of any improvements and betterments, the
foregoing policy shall be on a builder's risk completed value, non-reporting
form. The proceeds of such insurance policies shall be held in trust by Tenant
for use in repairing and restoring the items covered. Tenant also agrees to
maintain insurance on its contents and personal property within the Premises.
Section 13.3. Other Requirements. The foregoing policies shall be issued by
an insurance company authorized to do business in the state in which the
Premises are situated and which has a Best's Insurance Guide rating of
"A+:VIII." Tenant shall deliver to Landlord certificates evidencing the
foregoing insurance prior to moving in and commencing any construction work on
the Premises. Tenant's insurance carrier shall provide in its policies,
certificates or endorsements that it will give Landlord at least ten (10) days'
written notice before any cancellation, lapse or material change in coverage.
The insurance required in this Lease may be covered under a so-called "blanket"
policy including other stores of Tenant or its affiliates.
Section 13.4. Tenant's Indemnification. Subject to the provisions in
Section 13.1 above and Section 13.6 below, Tenant shall indemnify and hold
harmless Landlord and it, partners, officers, agents, contractors and employees
from and against all claims, actions, liability and expenses in connection with
any loss of life, bodily injury and damage to property: (a) arising out of any
occurrence in, upon or at the Premises, [or otherwise resulting from the
occupancy or use by Tenant, its gents, contractors, subcontractors, subtenants,
licensees, concessionaires or employees], unless the same be caused by willful
or negligent act or omission of Landlord, its agents, contractors or employees;
and (b) arising from any occurrence outside the Premises which is occasioned
wholly or in part by any willful or negligent act or omission of Tenant, its
agents, contractors, subcontractors, subtenants, licensees, concessionaires or
employees. If any action or proceeding is brought against Landlord, or its
partners, officers, agents, contractors, or employees by reason of the
aforementioned causes, Xxxxxx also agrees to defend such action or proceeding by
adequate counsel at its own expense, upon receiving notice thereof from
Landlord.
Section 13.5. Landlord's Indemnification. Likewise subject to the
provisions in Section 13.1 above and Section 13.6 below, Landlord shall
indemnify and hold harmless Tenant and it partners, officers, agents,
contractors and employees from and against all claims, actions, liability and
expenses in connection with any loss of life, bodily injury and damage to
property: (a) arising out of any occurrence in, upon or at the Premises which is
occasioned wholly or partially by any willful or negligent act or omission of
Landlord, its agents, contractors or employees and (b) arising from any
occurrence upon the common facilities of the Center outside the Premises, unless
the same be caused by the willful or negligent act or omission of Tenant, its
agents, contractor, subcontractors, subtenants, licensees, concessionaires or
employees. If any action or proceeding is brought against Tenant, its parties,
officers, agents, contractors or employees, by reason of the aforementioned
causes, Xxxxxxxx also agrees to defend such action or proceeding by adequate
counsel at its own expense, upon receiving notice thereof from Tenant.
Section 13.6. Waiver of Subrogation; Limits of Liability. (a) Anything in
this Lease to the contrary notwithstanding, each party (hereafter called the
"Releasing Party") hereby releases the other (hereinafter called the "Released
Party") from all liability for property damage which the Released Party would
have, but for this Section 13.6, to the Releasing Party, resulting from the
occurrence of any accident or casualty during the Lease Term: (i) which is or
could be covered by fire and extended coverage or other insurance policies (with
a vandalism and malicious mischief endorsement attached) or by a sprinkler
leakage or water damage policy (irrespective of whether such coverage is
actually being carried by the Releasing Party); or (ii) covered by any other
casualty or property damage insurance being carried by the Releasing Party at
the time of such occurrence -- regardless of whether such accident or casualty
may have resulted wholly or partially from and act or neglect of the Released
Party, its officers, agents, contractors or employees.
(b) Landlord and Tenant shall cause each insurance policy carried by either
of them respectively on or relating to the Premises, its improvements,
betterments, fixtures and contents, to be written in a manner so as to provide
that the insurance company waives all right of recovery by way of subrogation
against Tenant or Landlord (as the case may be) in connection with any loss or
damage. Except as specifically provided herein, neither party shall be liable to
the other for any loss or damage caused by fire or any other risk or risks
against which any such policy insures or against any risk or casualty described
herein, regardless of deductible amounts.
(c) Anything in this Lease to the contrary notwithstanding, neither
Landlord not Tenant shall have any responsibility or liability whatsoever for
any damages arising from the willful or negligent act or omissions of any third
party, including other tenants or occupants of the Center or any customer,
guest, invitee or intruder.
Section 13.7. Electrical Installations. In the event Tenant installs any
electrical equipment or fixtures that overload the lines in the Premises, Tenant
shall, at its own expense, make the changes necessary to comply with Landlord's
requirements and those of insurance underwriters and applicable local
governmental code administrators. Tenant agrees not to use any electric irons,
electric grills or other equipment that contains an electric heating element,
unless such electrical equipment also includes a red pilot light, connected and
operated in compliance with Underwriters' Laboratory specifications.
Section 13.8. Casualty. In the event the Premises are destroyed or so
damaged by fire, tornado, flood, storm, explosion, earthquake or other casualty
as to become untenantable in Landlord's judgement, then Landlord may elect
either to rebuild and put said Premises in good condition and fit for occupancy
within a reasonable time thereafter, or to give Tenant notice in writing
terminating this Lease. If Landlord elects to repair or rebuild the Premises, it
shall give Tenant reasonably prompt notice after the casualty of its intention
to do so. As to any part of the Premises determined by Landlord to be
untenantable or unfit for occupancy, the rent shall xxxxx in proportion to the
untenantable area of the Premises from the time of such casualty until the
Premises have been repaired by Landlord and delivered to Tenant for its
occupancy. In no event and under no circumstances shall Landlord be responsible
to Tenant, its agents, employees or any other person or entity for any loss of
business or profits, loss of income or other loss or damage to any merchandise
or personal property of Tenant, regardless of whether Landlord cancels this
Lease or elects to rebuild or repair the Premises. In any event, Tenant shall be
responsible for obtaining its own business interruption insurance with
appropriate coverages.
Article 14
Examination of Premises and
Limitations of Liability
Section 14.1. Examinations of Premises. Tenant has had ample opportunity to
thoroughly examine the Premise and/or architectural plans therefor, including
the sidewalks and alleyways adjacent to the Premises, and Tenant hereby
acknowledges that there is in and about them nothing dangerous to life, limb,
health or property, and waives any claim for damages that may arise from defects
of any character after occupancy or the Commencement Date of this Lease, and
Xxxxxx takes the Premises "as is" or as they will be when specified improvements
and betterments (if any) are completed, and is fully informed, independently of
Landlord, as to the character of the building,
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its construction and structure.
Section 14.2. Assumption of Risks. Tenant specifically assumes all risks of
installing and moving it personal property into the Premises and occupying the
same. Neither Landlord nor it employees or agents shall have any liability for
damage to property of Tenant or of others entrusted to Tenant or its agents, nor
for loss or damage to any property by theft or otherwise, not for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, dust, smoke, rain, snow, dampness, or leaks
from: (a) any part of the building; (b) the pipes, appliances or plumbing; or
(c) the roof, street or subsurface or any other place; or by any other cause of
whatsoever nature, whether or not due to the negligence of Landlord, its agents
or employees; nor shall Landlord or its employees or agents be liable for any
damage caused by other tenants or persons in the building, or caused by
construction operations or activities relating to any private, public or
quasi-public work.
Section 14.3. Tenant's Negligence. Xxxxxx agrees to indemnify, defend
(through counsel acceptable to Landlord) and hold harmless Landlord and it
partners, contractors, agent and employees from and against any statutory or
other liabilities, claims, damages, injuries (including death), suits, demands,
damages, judgements, costs, fines, penalties, interest and expenses (including,
without limitation, legal fees, court costs, investigation and discovery
expenses, and disbursements incurred in any action or proceeding) by reason of
any claim of liability for death, personal injury or damage to property
(including any loss of use thereof) or otherwise arising from or in connection
with the use and occupancy of the Premises at any time, or arising from any
condition of the Premises or from any act, omission or negligence of Tenant or
any agents, contractors, subcontractors, subtenants, licensees, concessionaires,
employees, guests or invitees.
Section 14.4. Other Risks. Tenant shall also insure all its inventory,
furnishings, trade fixtures and other personal property on the Premises against
losses of all kinds. All personal property of every kind and description
whatsoever in the Premises shall be on or about the Premises at Tenant' sole
risk, and Landlord shall not be liable for any damage done to, or loss of, such
personal property; or for damage to or loss of business income or occupation of
Tenant caused in any manner whatsoever or arising from: (a) any act of neglect
of third parties, co-tenants or other occupants of the building or their
employees; (b) bursting, overflowing or leaking of water, sewer or steam pipes;
(c) rain, wind, tornadoes, flood, surface or subsurface water; (d) overflows of
drainage facilities; (e) backup or stoppage of any drain, sewer or other water
runoff facility or device; (f) heating or plumbing fixtures; (g) noise or dust;
(h) electrical wires; (i) gas, odors, natural disasters, riots or acts of
violence; or (j) leaking roofs. Tenant shall give Landlord prompt notice of any
accident to, defect in or problem in the Premises or building that houses the
Premises of which Xxxxxx has knowledge or notice.
Article 15
Assignment, Sublease or Change of Management Control
Section 15.1. Consent to Transfer. Except upon Landlord's written consent
in each instance, Tenant shall not directly or indirectly, voluntarily, by
operation of law, or otherwise: (a) sell, assign, encumber, pledge or otherwise
transfer or hypothecate all or any part of this Lease, the Premises or Tenant's
leasehold interest hereunder; nor (b) allow or permit any sale or transfer
(including by consolidation, merger or reorganization) of a majority of the
voting stock or management control of Tenant, if Tenant is a corporation; nor
(c) allow or permit any sale or other transfer of controlling general
partnership interests in Tenant, if Tenant is a partnership; nor (d) allow or
permit a change of present controlling executive management by management
contract, license, franchise agreement or other arrangement [all of the
foregoing items (a), (b), (c) and (d) are hereafter collectively referred to as
an "Assignment"]; nor (e) permit subtenants, concessionaires, licensees or
others to occupy all or any portion of the Premises; nor (f) sublease the
Premises or any portion thereof [items (e) and (f) are hereafter collectively
referred to as a "Sublease"].
Section 15.2. Request for Approval. If Tenant desires at any time to enter
into an Assignment or Sublease as described above, it shall first give written
notice to Landlord of its desire to do so, which notice shall contain or
include: (a) the name of the proposed successor, assignee, subtenant or occupant
(hereafter referred to as the "transferee"); (b) the nature of the proposed
transferee's business to be conducted in the Premises; (c) the terms, provisions
and economic considerations of the proposed Assignment or Sublease; (d) the
identity of proposed principals and lease guarantors (if any); (e) signed
current financial statements of the proposed transferee and guarantors (if any),
reviewed or prepared by a major local or national certified public accounting
firm; and (f) the business plan of the proposed transferee or other written
statements of purpose, proposed operating policies and the background and
experience of the principals.
Section 15.3. Landlord's Election. At any time within thirty (30) days
after receipt of the notice specified in Section 15.2 above, Xxxxxxxx may
request additional information or may, in its sole discretion, by written notice
to Tenant: (a) consent to the Sublease or Assignment; or (b) disapprove the
Sublease or Assignment. If Landlord consents to the Sublease or Assignment
within thirty (30) day period, Tenant shall within thirty (30) days thereafter
enter into such Sublease or Assignment of the Premises or portion thereof, upon
the terms and conditions set for the in the notice previously furnished by
Tenant to Landlord pursuant to Section 15.2 above, otherwise Landlord's consent
shall be void and of no force or effect.
Section 15.4. Noncompliance. No consent by Landlord to any Assignment or
Sublease by Tenant shall relieve Tenant of any obligation to be performed by
Tenant under this Lease, whether arising before or after the Assignment or
Sublease. Xxxxxxxx's consent to any Assignment or Sublease shall not relieve
Tenant, or the transferee, from the obligation to obtain Landlord's express
written consent to any other Assignment or Sublease. Following Landlord's
consent to an Assignment or Sublease, said Assignment instrument or Sublease
shall not be subsequently amended or modified without written notice to and the
consent of Landlord, if Landlord would have been entitled to notice thereof in
the first instance pursuant to Section 15.2. Any purported Assignment or
Sublease not in compliance with this Article shall be void and, at the option of
Landlord, shall constitute a material default by Tenant under this Lease. The
acceptance of rent or additional charges by Landlord from a proposed transferee
shall not constitute Landlord's consent to any such Assignment or Sublease.
Section 15.5. Assumption of Lease. Each transferee, other than Landlord,
shall expressly assume all obligation of Tenant under this Lease and shall be
and remain liable jointly and severally with Tenant for the payment of rent and
additional charges, and for the performance of all the terms, covenants,
conditions and agreement herein contained with respect to that portion of the
Premises identified in Tenant's notice to Landlord pursuant to Section 15.2
above. No Assignment or Sublease shall be binding on Landlord, unless the
transferee or Tenant shall deliver to Landlord an executed counterpart of the
Assignment or Sublease which contains covenants of assumption satisfactory in
substance and form to Landlord, and consistent with the requirements of this
Article; provided that the failure or refusal of such party to execute such
instrument or assumption shall not release or discharge the transferee from its
liability as set forth above.
Section 15.6. Delay or Refusal. (a) Notwithstanding the fact that Landlord
reserves the right to withhold its approval or consent in its reasonable
discretion and for whatever reason in connection with any aspect of the
provisions of this Article, in the event Tenant should claim that Landlord has
been wrongful in withholding or delaying consent or requesting information as to
a proposed Sublease or Assignment, or otherwise that Landlord has wronged Tenant
or its proposed transferee in its exercise of any rights reserved to Landlord
under this Lease, then Xxxxxx's remedies and those of the proposed transferee
shall be restricted to a declaratory judgement and/or an injunction for relief
sought, and no monetary or punitive damages may be claimed. In consideration
thereof, Xxxxxxxx agrees that any application for a declaratory judgement and/or
injunctive relief may be treated as such and relief may be granted accordingly
on the pleadings in favor of either Landlord or Xxxxxx as determined by the
court, this agreement by Landlord being a special inducement to Tenant and
proposed transferees restricting their remedies as above provided and waiving
all others. By the execution of this Lease and by the application to Landlord
for any consents or approvals as required under this Article or elsewhere in
this Lease, Tenant specifically waives and
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relinquishes any rights, claims or causes of action by way of damages, loss of
profits or advantages, tortious interference with contractual obligations,
disparagement or any other remedies other than that of declaratory judgement
and/or injunction as described above. Where under the provisions of this Article
a consent is required, such consent shall be defined as a written consent, and
no inference that a consent has been given shall be drawn from Landlord's
conduct or inaction in any event.
(b) In each case the reasonableness of Landlord's election regarding a
proposed Assignment or Sublease shall be deemed conclusive, unless Tenant shall,
within sixty (60) days after notice from Landlord of its determination, file an
equitable action in the appropriate state court seeking injunctive relief from
Landlord's determination, which injunctive relief shall be Tenant's sole remedy
for any claim that Landlord wrongfully withheld or delayed its consent or
approval. In the event that any action for injunctive relief shall be filed by
Tenant pursuant to the provisions of this Section, the sole issue to be
submitted to the Court shall be the determination as to whether the withholding
or delaying of consent or approval by Landlord shall have been reasonable or
unreasonable, and in the event that a determination shall be made that the
withholding or delaying of consent or approval by Landlord was unreasonable,
then the Court's decision or order shall annul such withholding or delaying of
consent or approval, such annulment being the sole remedy of Tenant. It is the
intention of the parties hereto (as to which they are conclusively bound) that
in no event shall Landlord's withholding or delaying of consent or approval, or
any decision of any Court with respect thereto: (i) impose any financial
liability upon or result in any damages being recoverable from Landlord; or (ii)
create any recognizable right or enforceable remedy in favor of Tenant and
against Landlord in law or equity, except as expressly provide herein.
Section 15.7. Successors; Joint Liability. All rights and liabilities
herein given or imposed upon the respective parties hereto shall, except as may
be otherwise herein provided, extend to and bind the respective heirs,
executors, administrators, successors and assigns of the said parties; and if
there shall be more than one (1) Tenant, they shall all be bound jointly and
severally by the terms, covenants and agreements herein contained. No rights,
however, shall inure to the benefit of any transferee or assignee of Tenant
unless the Assignment or Sublease has been made in accordance with the
provisions in this Article.
Section 15.8. Processing Charge. Xxxxxx agrees to reimburse Landlord for
reasonable attorneys' fees incurred by Landlord in connection with the
processing, review and documentation of any Assignment, Sublease, license,
concession, creation of a security interest, granting of a collateral
assignment, change of ownership or transfer for which Xxxxxxxx's consent is
required or sought under this Article. Landlord shall not be required to take
any action thereon until Tenant pays such amounts.
Section 15.9. Xxxxxxxx's Consideration. Whenever its consent to a proposed
Assignment or Sublease is required hereunder, Landlord may request additional
supporting documentation and assurances and may reasonably consider all relevant
factors, including (without limitation):
(a) Whether the use of the Premises and trade name of the proposed
transferee will be identical to (or substantially the same as) those of Tenant,
or will otherwise be compatible with Landlord's efforts to enhance the image,
reputation, trade name and long-term profitability of the Center;
(b) Whether the addition of the proposed new tenant or subtenant will be
compatible with the tenant mix of the Center generally and specifically among
business operators specializing in particular kinds of merchandise, services and
products; or conflict with Landlord's marketing plans for the Center and the
consumer groups being targeted by Landlord and its leading tenants in the
Center;
(c) Whether the quantity, kind, variety and quality of the merchandise sold
will remain substantially the same;
(d) Whether the level and quality of customer services on the Premises will
be consistent with those of the leading tenants of the Center and will remain
high;
(e) Whether the net worth and liquidity of the proposed transferee and
lease guarantors (if any) are adequate in relation to the assets held and to
current and anticipated future financial obligations, as revealed by current
signed financial statements reviewed by a major local or national certified
public accounting firm;
(f) Whether the proposed transferee and its principals, affiliates and
guarantors (if any) have a sufficient credit history and reputation for honesty
and fair dealing;
(g) Whether the business plan and operating procedures for the business on
the Premises are reasonably coherent, lucid, credible and economically feasible;
(h) Whether the proposed transferee and its management team have sufficient
education, specifically applicable business experienced, and successful track
records in marketing and managing businesses similar in size, scope and scale to
that on the Premises together with any other stores, offices or businesses
proposed to be acquired by the transferee and its affiliates; and
(i) Whether the amounts to be invested in the business on the Premises are
actually invested, and whether the proposed transferee and its principals and
guarantors (if any) have sufficient personal financial interest and potential
personal liabilities to assure proper motivation for success.
Article 16
Use and Operations
Section 16.1. Permitted Use. Tenant may use and occupy the Premises during
the continuance of this Lease only for the "Permitted Use" described on the
Summary/Signature Page of this Lease [and/or in the Special Provisions], and for
no other purpose without the prior written consent of Landlord. Unless otherwise
authorized herein or expressly provided by applicable laws or regulations, the
Premises shall not constitute or be used as a "place of public accommodation" as
defined in the Americans with Disabilities Act of 1990 and applicable federal
regulations. Tenant shall promptly comply with all laws, ordinances and
governmental orders and regulations in any way affecting the cleanliness,
occupation or use of the Premises or the physical accommodations, facilities and
equipment therein. No auctions, fire sales, truckload sales, sidewalk sales,
inventory reduction sales, liquidation sales, bankruptcy sales, "going out of
business" sales or sales of similar import any be conducted on or about the
premises except upon Landlord's prior written consent in each instance. Tenant
agrees to conduct its business in the Premises during the regular and customary
hours for such type business in a lawful manner, in good faith and in such a
manner that Landlord will at all times received the maximum amount of Rent
consistent with the profitable operation of Tenant's business on the Premises.
Tenant shall not conduct wholesale, factory outlet or warehouse business on the
Premises, or operate as a discount store, or otherwise engage in heavily
discounted sales from the Premises. For purposes of this Lease, "heavily
discounted" sales shall mean those advertised or promoted at reductions of
greater than fifty percent (50%) from retail prices. Tenant further agrees to
maintain the interior of its Premises with tastefully decorated and appointed
furnishings and store fixtures, and with top-quality display racks, counters,
shelving, floor and wall coverings.
Section 16.2. Business Hours and Continuous Operation. Tenant covenants and
agrees that it will conduct its business on the Premises, operating continuously
and without interruption during the entire Term under Xxxxxx's trade name (or
such other trade name as Landlord may approve in writing), remaining open for
business to the public on the Premises and being staffed with sufficient
employees to handle anticipated sales during all hours and on all days set forth
on the Summary/Signature Page of this Lease.
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In the event Tenant fails to open for business for more than five (5) days in
any Lease Year when it is otherwise required to be open (except due to an
unavoidable casualty to the Premises or other nonmonetary reasons beyond
Tenant's control), then Tenant shall pay one hundred and twenty percent (120%)
of the Minimum or Base Rents last established for the remainder of the Lease
Term.
Section 16.3. Prior Vacation. In the vent that Tenant ceases to operate a
business on the Premises for the purpose authorized herein and as described in
Section 16.2 above, or if Tenant surrenders the keys to the Premises, then
Landlord shall have all rights and remedies under Article 21 below. In case of
any such prior vacation of the Premises, the Lease shall continue unless or
until terminated by express action of Landlord pursuant to Article 21 of these
General Provisions or until its Term expires, and Tenant shall remain liable for
the payment of rents and other charges, notwithstanding Landlord's acceptance of
the keys or attempts to re-let the Premises.
Article 17
Bankruptcy and Insolvency
Section 17.1. Events of Bankruptcy or Insolvency. The following shall
automatically constitute "Events of Bankruptcy or Insolvency" by Tenant: (a) the
fling of any voluntary petition or entry of an order for relief against Tenant,
under Chapter 7, 11 or 13 of the United States Bankruptcy Code [unless dismissed
within thirty (30) days]; (b) the conversion of a proceeding against Tenant
under any other chapter of the Bankruptcy Code to a Chapter 7, 11 or 13 action;
(c) the making of a voluntary assignment by Tenant for the benefit of its
creditors; (d) the appointment of a receiver or trustee to take charge of
Tenant's business, or the take-over of Tenant's business by any federal or state
banking, insurance or regulatory authority having jurisdiction; (e) the filing
of any other petition or application seeking relief under federal or state laws
now or hereafter providing for the relief of debtors; (f) any garnishment,
attachment, exception or action in aid of pre-judgement or post-judgement
assessment or execution, or any local, state or federal tax sale or tax levy, or
(g) any other transfer of this Lease by operation of law. All such Events of
Bankruptcy or Insolvency shall also constitute defaults under this Lease, and
Landlord may, at any time thereafter, exercise any of the remedies available to
Landlord for such a default by Tenant. Notwithstanding anything to the contrary,
any such involuntary proceeding against Tenant shall not constitute an Event of
Default or Insolvency if dismissed or stayed with thirty (30) days of its
institution.
Section 17.2. Assignment of Lease. If an Event of Bankruptcy or Insolvency
occurs, the trustee, receiver or regulatory authority in charge of Tenant's
business may temporarily assume the obligations of the Lease by curing all
monetary defaults within ten (10) days from such occurrence, and curing all
other defaults within thirty (30) days, and by timely paying all rents
throughout the period of receivership, trust or regulatory control. Said
trustee, receiver or regulatory authority may then: (a) reject and cancel the
Lease by written order or notice to Landlord within sixty (60) days after the
occurrence of such Event of Bankruptcy or Insolvency, or such longer period as
may be afforded by court order or notice to Landlord within sixty (60) days
after the occurrency of such Event of Bankruptcy or Insolvency, or such longer
period as may be afforded by court order or applicable law; or (b) permanently
assume and assign the Lease, subject to Landlord's prior written consent in
accordance with Article 15 above, and subject also to the proposed assignee
providing Landlord "adequate assurances of future performance" as described
below. For purposes of this Lease, "adequate assurances of future performance"
shall mean substantial and convincing objective documentation or contractually
binding commitments: (i) that the proposed assignment will in no way breach or
violate Landlord's obligations to its creditors or to other tenants of the
Center, or require the prior written consent of any third party, or require the
waiver of rights under any agreement between Landlord and any third party; (ii)
that the proposed transferee or assignee has adequately addressed Landlord's
legitimate concerns as to the effects of the proposed assignment or sublease
upon the long-term profitability and tenant mix of the Center, has provided all
documentation and information requested pursuant to Section 15.2 above, and
reasonably satisfied the burdens and criteria described in Section 15.9 above;
(iii) that the proposed transferee or assignee has cured or will promptly cure
all defaults under the Lease; has deposited or will promptly deposit with
Landlord, as security for the timely payment and performance of all future Lease
obligations pursuant to Section 7.2 above, a cash sum equal to at least three
(3) months' Minimum or Base Rents at current levels under the Lease plus three
(3) months' Operating Expenses and other charges due hereunder; and (iv) that
the proposed transferee or assignee has sufficient experience, managerial and
marketing skills to reasonably assure that Landlord will receive the Minimum or
Base Rents (adjusted as provided in Section 3.2 above) throughout the remaining
Lease Term.
Article 18
Fixtures and Property Removal
Section 18.1. Tenant's Property. For the purpose of this Article 18, the
following shall be deemed to be Tenant's property: (a) all furniture, trade
fixtures, equipment and movable personal property, other than those installed by
or at the expense of Landlord; and (b) all inventory and stock in trade
furnished by or at the expense of Tenant. Such property may be removed from the
Premises by Tenant at any time, provided that items essential to the conduct of
Tenant's business shall be replaced with items of similar purpose and quality
during the Lease Term. All of Tenant's property except those items, if any,
which Landlord may have given Tenant specific written permission to leave in the
Premises, shall be removed upon expiration or termination of this Lease. Tenant
shall: (i) repair any damage to the Premises, building, Center or tract caused
by the removal of Tenant's property; (ii) have all utility lines professional
capped or plugged; and (iii) restore the Premises, building, Center and tract to
substantially the same order and condition as existed immediately prior to the
time Tenant entered into possession of the Premises, ordinary wear and tear and
damage by casualty and the elements excepted. Such repairs and restoration work
shall be made promptly, and in any event prior to expiration or termination of
this Lease. Any of Tenant's property not so removed may, at Landlord's election
and without limiting Landlord's right to compel removal thereof, be deemed
abandoned, and Landlord may remove and dispose of the same and restore the
Premises to good order and condition, and Tenant shall reimburse Landlord for
all reasonable costs and expenses in connection with the restoration as
Additional Rent within thirty (30) days after written notice thereof from
Landlord. And Tenant hereby releases Landlord from any and all liability in
connection with the removal and disposition of any of Tenant's property not so
removed by Tenant prior to expiration or termination of this Lease.
Section 18.2. Landlord's Property. Regardless of which party may have
installed or paid for them, or may own or have insurable interest in them during
the Lease Term, any and all plumbing lines and fixtures, light fixtures,
heating, ventilating and air conditioning equipment, carpeting and suspended
ceilings, and other improvements, betterments, materials, fixtures and
equipment, affixed in any manner to the Building or Premises (except trade
fixtures and equipment installed and paid for by Tenant) shall become Landlord's
sole property upon expiration or termination of this Lease; and no such property
may be removed from the Premises except upon the expressed written consent of
Landlord; provided that Landlord shall have the right, at its option, upon
expiration or termination of the Lease Term, to demand that Tenant remove any
specific improvements, betterments or other items previously installed and paid
for by Tenant and to restore the Premises to substantially the same condition as
existed prior to Tenant originally taking possession of the Premises, all at
Tenant's cost and expense; and Tenant shall promptly comply. By way of
illustration and not in limitation, the following kinds of fixtures,
improvements, betterments and other items shall be deemed to be Landlord's
property unless otherwise determined by Landlord; attached carpeting and floor
coverings; paneling, woodwork and moldings; doors and windows; attached mirrors;
fixed walls and partitions; pipes, faucets, sinks, disposals, commodes and
plumbing fixtures of all kinds; lighting fixtures and electrical outlets;
heating, ventilating and air conditioning ductwork, compressors, condensers,
furnaces, boilers and other equipment; hot water heaters; floors, decks and
mezzanines; built-in ovens, stoves, walk-in or nonremovable freezers or
refrigerators and other kitchen equipment; suspended and fixed ceilings; fixed
cabinetry and shelving; wall coverings; ceiling and attic fans and humidifiers;
blinds, drapes, curtain rods and other window treatments; gazebos, gates,
fences, trellises, trees, shrubs and plantings of all kinds; all similar items
and all improvements and betterments to the building, Premises and appurtenant
tract.
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Article 19
Landlord's Lien, Waiver and Security Agreement
Section 19.1. Landlord's Lien. All property of Tenant which is now or
hereafter may be in or upon the Premises, whether or not exempt from execution,
shall be bound by and subject to lien and also to the encumbrance of a security
interest in said property, which hereby Tenant grants to Landlord in accordance
with the provisions of Uniform Commercial Code ("UCC") in the state in which the
Premises are located for the payment of all rents and charges herein reserved
and for the payment of any damages arising from Tenant's breach of any of the
covenants or agreements of this Lease; provided that the provisions hereof shall
not apply to inventory stock-in-trade kept by Tenant, but the lien and security
interest hereby created shall apply as to all other property of Tenant now or
hereafter in or upon said Premises. Tenant hereby appoints Landlord as its agent
and attorney-in-fact to execute any and all financing statements, amendments and
extensions thereof on UCC forms on behalf of Tenant, and to file the same on
behalf of Tenant or without Xxxxxx's signature, at Landlord's option. In case of
default in the payment of any installment of rents or any other sums required to
be paid by Tenant when the same become due, which default continues for a period
of ten (10) days after written notice from Landlord to Tenant, Landlord may take
possession of all or any parts of such property and sell or cause the same to be
sold at public or private sale, with or without notice, to the highest bidder
for cash, and apply the proceeds of said sale toward the costs thereof and then
toward the debt and/or damages as aforesaid. Xxxxxxxx's exercise of the security
interest herein created shall cause Landlord's interest in said property to be
senior to Xxxxxx's interest therein for proposes of any replevin action brought
against Landlord by Xxxxxx.
Section 19.2. Optional Waiver. Landlord may elect, in its sole discretion,
to release or subordinate any and all rights it may have to claim a lien or
other rights in or to Tenant's property described in Section 18.1 of these
General Provisions above except as expressly provided therein in the case of
abandonment. All banks and other lenders claiming a security interest in any or
all Tenant's property may give Landlord written notice of their security
interests upon or prior to expiration or termination of this Lease; and Xxxxxxxx
will contract said lender if any such items remain in the Premises following
expiration or termination, provided that the lender promptly removes the same
upon demand by Landlord. Any items not so removed by the lender shall be deemed
abandoned, and Landlord shall dispose of the same as it sees fit and retain all
proceeds (if any).
Section 19.3. Non-Waivable Security Interest. Regardless of who may have
installed or paid for them, or who may own or have insurable interests in them
during the Lease Term, Landlord hereby affirms and asserts its lien rights in
and to full ownership of all Landlord's property described in Section 18.2 above
upon expiration or termination of this Lease, together with all replacements
thereof and substitutions therefor. The provisions of this Lease shall
constitute a security agreement under the Uniform Commercial Code in the state
in which the Premises are located, for the payment of all rents and other
charges reserved hereunder and damages arising from the breach (if any) by
Tenant of the covenants, terms or conditions of this Lease; and such security
interest shall attach and apply to any and all improvements, betterments,
equipment and other items installed by Tenant in the Premises (except Tenant's
property described in Section 18.1 above), or otherwise comprising Landlord's
property as described in Section 18.2 above. In the event of default by Xxxxxx
in the payment of rents or performance of any other covenant of this Lease, then
Landlord shall have all rights and remedies prescribed in Article 20 below.
Further, if Tenant fails to timely cure any such default after written notice
from Landlord, then Landlord or its successors or assigns, shall also have the
further right to take possession of the encumbered property or any part thereof
and sell or cause the same to be sold at any public or private sale with or
without further notice to Tenant, to the highest bidder for cash; and Landlord
may thereupon apply proceeds of such sale toward the costs of sale and then to
Tenant's rental obligations and Xxxxxxxx's damages as aforesaid. Xxxxxxxx's
security interest herein created shall be first and paramount over the interests
of the Tenant and any lender of Tenant and specifically shall be senior to any
claim by Tenant or its lenders for replevin of such property brought against
Landlord. No action of Landlord in expressly waiving any security or lien rights
against Xxxxxx's property shall ever be deemed to extend such waiver to
Landlord's property as described in Section 18.2 above. Further, no officer,
employee or agent of Landlord shall have any authority to waive Landlord's
security and lienable interests in Landlord's property described herein and in
Section 18.2 above; such interests being waivable only by means of an expressed
written resolution of Landlord's board of directors (or executive committee of
the board of directors, if they are expressly empowered to so act). Nothing
herein, however, is intended to preclude Tenant from securing proper leasehold
financing of Tenant's property and Xxxxxx's leasehold interests in the Premises;
provided that upon expiration or termination of this Lease Landlord's property
shall remain Landlord's, free and clear of any encumbrance on the part of Tenant
or its lenders.
Article 20
Eminent Domain
Section 20.1. Effects of Condemnation. If all or any part of the Premises
shall be taken by any public or quasi-public authority under the power of
eminent domain, or conveyed to a public or quasi-public authority under the
threat of the power of eminent domain, then the terms of this Lease shall cease
as to that part of the Premises so taken or conveyed (hereafter referred to as
the "condemned portion") from the date possession of the condemned portion shall
be taken by the condemning authority. Unless this Lease is cancelled as
hereafter provided, the Minimum or Base Rents and other charges provided for
herein shall be reduced in proportion to the amount of the Premises taken,
commencing with the date possession is acquired by the condemning authority. If
the loss of the condemned portion will, in landlord's sole judgement based upon
generally accepted standards applicable to Tenant's business on the Premises,
have a significantly impairing effect on such business as to render the Premises
unfit for intended use, the Tenant may cancel this entire Lease. Such right to
cancel may be exercised by Tenant only:
(a) If Tenant gives Landlord at least ten (10) days' prior written notice
of such cancellation;
(b) The effective date of such cancellation of the entire Lease is the same
as the date possession was obtained of the condemned portion by the condemning
authority; and
(c) Rent and all other charges are paid in full to the effective date of
such cancellation.
Section 20.2. Awards. All damages awarded for any such taking shall belong
to Landlord as its property, whether such damages shall be awarded as
compensation for diminution in value to the leasehold or to the fee interest in
the Premises; provided, however, that Landlord shall not be entitled to any
portion of the award made to Tenant for loss of business, damage and
depreciation to its inventory, stock, furnishings and trade fixtures, and the
costs of removing and relocation the same.
Article 21
Default
Section 21.1. Events of Default. Tenant shall be in default under this
Lease if any of the following events shall occur:
(a) If Tenant fails to pay any rent or other sum of money required
hereunder within ten (10) days after written notice or billing from Landlord
[hereafter referred to as a "monetary breach or default"].
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(b) If Tenant closes its business on the Premises when required to be open,
or vacates and removes its personal property therefrom, or abandons its personal
property therein [hereafter collectively referred to as a "closing"], and
further fails to re-open for business in the Premises within ten (10) days after
written notice from Landlord.
(c) If any Event of Bankruptcy or Insolvency occurs as defined in Section
17.1 above, or if Tenant violates, breaches or fails to perform any other act,
covenant or condition required or prohibited under this Lease [hereafter
collectively referred to as a "non-monetary breach"], and fails to cure such
non-monetary breach within thirty (30) days after written notice from Landlord,
or fails to promptly and timely commence the cure of any such non-monetary
breach not capable of being cured within such thirty (30) day period and to
diligently pursue the same to completion within reasonable period of time.
Section 21.2. Remedies. In the event Tenant is in default under this Lease,
or if Tenant voluntarily gives up possession of the Premises by delivering keys
or written notice to that effect to Landlord, then Landlord may at any time
thereafter undertake any or all of the following remedies:
(a) Cancel and terminate this Lease by written notice to Tenant expressly
stipulating the effective date thereof.
(b) Re-enter and take possession of the Premises, remove all Tenant's
property therefrom and store or dispose of the same as Landlord sees fit
(applying the proceeds to Tenant's costs and obligations hereunder), and evict
any persons therein from the Premises -- and Tenant shall be liable for all
costs and expenses thereof as Additional Rent hereunder.
(c) Accelerate Tenant's obligations to pay Rents by written notice to
Tenant and demand immediate payment of all Rents that accrue throughout the
remainder of the Lease Term.
(d) Re-let the Premises or any part thereof upon such terms and for such
use or uses as Landlord deems appropriate for the tenant mix of the Center, to
such parties (and with such experience, financial worth and guarantees) as
Landlord in its discretion shall deem sufficient to protect its interests in the
Premises; provided that Landlord shall have no obligation to re-let the
Premises.
(e) Seek payment of all rents and other charges under the Lease, together
with monetary damages suffered by Landlord as a result of Tenant's default, by
any action at law or in equity against Tenant and/or its principals and
guarantors (if any).
(f) Seek possession of the Premises by any action at law or in equity
against Xxxxxx's and/or its principals and guarantors (if any).
Section 21.3. Consequential Damages and Other Provisions. Landlord shall
have no obligations to accept keys to the Premises from Tenant, but (if it does
so) such actions shall not constitute a surrender of the Premises by Tenant and
shall not cancel or terminate this Lease (except upon specific written notice to
that effect from Landlord), No re-entry or re-taking of possession of the
Premises by Landlord shall under any circumstances be construed as an election
to terminate or cancel this Lease unless Landlord expressly elects to do so as
provided in Section 21.2(a) above or unless so ordered by a court of competent
jurisdiction. In addition to the rents and other charges required to be paid
hereunder, Xxxxxxxx's damaged as a result of Tenant's default shall include
(without limitation): (a) the unamortized balance of the costs of any
improvements (if any) made or paid for by Landlord to accommodate Tenant's
occupancy of the Premises; (b) the reasonable costs of any clean-up and repair
work necessary or desirable to show the Premises to prospective new tenants; (c)
the reasonable costs of removing, storing, and/or disposing of Tenant's
inventory, furnishings and trade fixtures, as well as any improvements and
betterments in the Premises that are not suitable for a new tenant; (d) the
reasonable costs of re-letting the Premises, including advertising and other
out-of-pocket expenses and real estate leasing commissions or finders' fees; and
(e) court costs, filling fees, investigation costs, reasonable attorney's fees,
late charges and interest on all sums payable by Tenant. In its discretion at
any time or under any circumstances, Xxxxxxxx's rights and remedies hereunder
shall be cumulative and may be exercised and enforced concurrently. No right or
remedies under this Lease shall be exclusive of any other right or remedy.
Landlord may undertake one or more remedies while not exercising others that
remain available. Specifically, Landlord may undertake any of the remedies
described in Section 21.2(b), (c), (d) or (e) above without terminating the
Lease as provided in Section 21.2(a) above, as to all or any part of the
Premises or the rents and obligations under this Lease. If Landlord shall re-let
the Premises or any portion thereof, all rentals received therefrom during the
remaining Lease Term shall be applied to reduce Tenant's obligations hereunder;
but Landlord shall determine the acceptable amount of rent for any new tenant,
without regard for Tenant's obligations.
Section 21.4. Attorney's Fees. In the event the parties hereto become
involved in any proceeding to enforce this Lease or the rights, duties or
obligations hereunder, the prevailing party in such proceedings shall be
entitled to receive, as part of any reward, reasonable attorneys' fees, expenses
and court costs, and the non-prevailing party shall pay the same upon demand.
Section 21.5. Wavier of Jury Trial. Each of the parties hereby waives the
right to trail by jury in action, proceeding or counterclaim brought by either
party (or any affiliates) against the other (or any affiliates) on any matter
arising out of or in any way connected with or related to this Lease, the
Premises, the Center or the relationship of the parties.
Article 22
Sales and Mortgage of the Premises
Section 22.1. Mortgage. Landlord reserves the right to subject and
subordinate this Lease at all times to the lien of any mortgage or deed of trust
loan now or hereafter placed upon Xxxxxxxx's interest in the Premises or on the
Center and land of which the Premises form a part. Upon written request of the
holder of any mortgage or deed of trust (the "Mortgagee") now or hereafter
encumbering the Premises, Tenant shall subordinate its rights under this Lease
to the lien of such mortgage or deed of trust. Notwithstanding the foregoing, if
the Mortgagee elects to have this lease superior to its mortgage or deed of
trust, then upon Mortgagee's request, Tenant shall execute, acknowledge and
deliver an instrument, in the form used by said Mortgagee, effecting such
priority. In the event proceedings are brought for foreclosure of, or the
exercise of a power of sale under any such mortgage or deed of trust, Tenant
shall, upon request, adorn to the purchaser at any such foreclosure or sale and
recognize such purchaser as Landlord under this lease. Upon Xxxxxxxx's request,
Xxxxxx shall promptly execute, acknowledge and deliver such instruments as are
required to effect the intent of this section.
Section 22.2. Sale of Premises. Landlord further reserves the right to sell
or otherwise assign its interests in this Lease or the Premises, and no such
action shall affect or otherwise impair this Lease. If Landlord conveys
ownership of the Center or Premises or if Landlord assigns its interests in this
Lease, then upon such conveyance or assignment, Landlord (and the grantor or
assignor, in the case of any subsequent conveyances or assignments) shall be
entirely released from all liability with respect to the performance of any
obligations on the part of Landlord to be performed hereunder from and after the
date of such conveyance or assignment; subject, however, to the new Landlord's
accepting the responsibility for the performance of all obligations of this
Lease to be performed by Landlord.
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Section 23.3. Estoppel Certificates. Xxxxxx agrees to execute, acknowledge
and deliver to and in favor of any proposed Mortgagee or purchaser of the
Premises or Center, within fifteen (15) days after written request by Xxxxxxxx,
any estoppel certificate that may be requested. If such certificate is not
returned during that period of time, then commencing on the sixteenth (16th) day
and continuing each day thereafter, Xxxxxx agrees to pay as Additional Rent, the
sum of Twenty-Five Dollars ($25.00) per day, until such certificate is returned.
The estoppel certificate shall state, among other things: (a) whether this Lease
is in full force and effect; (b) whether this Lease has been modified or amended
and, if so, identifying and describing any such modification or amendment; (c)
the date to which rents and any other charges have been paid; and (d) whether
Tenant knows of any default on the part of Landlord or has any claim against
Landlord and, if so, specifying the nature of such default or claim.
Section 22.4. Quiet Possession. All other provisions of the Lease
notwithstanding, so long as Tenant shall not default in the payment of rents or
performance of the covenants of this Lease, Landlord shall not disturb Tenant's
possession of the of the Premises; and Xxxxxx's obligations to subordinate this
Lease, provide estoppel certificates and adorn to any purchaser or successor in
interest to Landlord, as required pursuant to Sections 22.1 and 22.2 above,
shall be conditional upon the mortgagee, purchaser or successor providing Tenant
with an appropriate non-disturbance agreement.
Article 23
Notices and Service
Section 23.1. Receipt of Notice. Any notice which either party desires or
is required to deliver to the other shall be in writing and shall be effective
and deemed received: (a) three (3) business days after being deposited in
regular United States Mail, postage prepaid, addressed as provided below; or (b)
one (1) business day after deposit with a nationally recognized overnight
courier service; or (c) upon delivery to Landlord or to Tenant or Tenant's
manager in person; or (d) upon receipt or refusal, after being delivered in
person or deposited in certified United States mail, return receipt requested,
addressed as follows:
To Tenant: At Tenant's home office address shown on the Summary/ Signature
Page of the Lease or at the last known post office address of
Tenant or at the address of the Premises; or
To Landlord: X.X. Xxxxxxx Company
000 Xxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Legal Department;
or to such other or additional addresses of which either party may, from time to
time, give written notice to the other.
Section 23.2. Consent to Service. Xxxxxx agrees that any action brought in
connection with this Lease may be maintained in any court of competent
jurisdiction in the country and state where the Premises are located. Tenant
hereby appoints Landlord as agent for the purpose of accepting service of any
legal process, subject only to the condition that Landlord promptly send notice
of such process to Tenant as provided in Section 23.1 above or at such other
address of Tenant as set forth elsewhere in this Lease or of which Tenant may
give Landlord notice at a later date.
Article 24
Expiration or Termination
Section 24.1. Surrender of Premises. Upon expiration of the primary Term or
any extension or renewal term of this Lease, or upon earlier termination or
cancellation of this Lease, unless the parties are negotiating in good faith for
a lease renewal, Tenant shall surrender the Premises in substantially the same
condition (subject to the removals herein allowed) as the Premises were on the
date Tenant opened the Premises for business to the public, ordinary wear and
tear and fire or other casualty damage expected. Tenant shall also surrender all
keys for the Premises to Landlord at the place then fixed for the payment of
rent and shall give Landlord all combinations and keys for locks, safes, and
vaults, if any, in the Premises. Prior to the expiration or termination of the
Term, Tenant shall remove all Tenant's property and, to the extent required or
allowed by Landlord, any other installations, alterations or improvements
provided for in Article 18 hereof, before surrendering the Premises as aforesaid
and shall repair any damage to the Premises caused thereby. Tenant's obligation
to observe or perform this covenant shall survive the expiration or termination
of this Lease.
Section 24.2. Holding Over. In the event Tenant remains in possession of
the Premises after the expiration or termination date of this Lease and without
the execution of a new lease or an extension or renewal agreement, Tenant shall
be deemed to be occupying said Premises from month-to-month, subject to all of
the conditions, provisions and obligations of this Lease insofar as the sale are
applicable month-to-month tenancy; provided that during such holdover period,
Tenant shall pay Landlord twice the monthly rents and other charges last
established under this Lease, unless the parties are negotiating in good faith
for a lease renewal.
Section 24.3. Re-Letting the Premises. Landlord may at any time within
sixty (60) days before the expiration date of this Lease enter the Premises at
all reasonable hours for the purpose of showing the Premises to prospective new
tenants and offering the same for rent and may place and keep on the windows and
doors of the Premises signs advertising the Premises for rent.
Article 25
Time and Force Majeure
Section 25.1. Force Majeure. In the event either party shall be delayed,
hindered or prevented from performing any act required under this Lease by
reason of strikes, lockouts, labor troubles, inability to produce materials,
failure of power, restrictive governmental laws or regulations, vandalism, riot,
insurrection, war, civil disobedience, or reasons of like nature, which are not
the fault of the party delayed in performing, then performance of such act shall
be excused for the reasonable period of the delay, and the period for the
performance of any such act shall be extended for a period equivalent to the
reasonable period of such delay.
Section 25.2. Timely Performance. Except as expressly authorized pursuant
to Section 25.1 above, TIME IS OF THE ESSENCE OF THIS LEASE. All other
provisions of this Lease notwithstanding, no force majeure event or other
circumstance shall justify or excuse a delay or failure to make any payment
required hereunder in a timely manner; provided that the commencement of the
Lease or opening of the Premises for business may be postponed as provided in
Section 23 above.
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Article 26
Real Estate Leasing Commissions
Section 26.1. Broker Contacts by Tenant. (a) Except as may be otherwise
described in the Special Provisions of this Lease, Tenant represents and
warrants to Landlord that Xxxxxx has had no dealings with any broker or agent in
connection with this Lease, and Xxxxxx agrees to indemnify and hold Landlord
harmless from and against any and all claims, liabilities and expenses
(including reasonable attorneys' fees) imposed upon, asserted or incurred by
Landlord as a consequence of any breach of this representation.
(b) Xxxxxx further agrees that Landlord shall have no obligation to pay (or
reimburse Tenant) for any real estate commission, finder's fee or other
remuneration payable to any broker, consultants or lawyer contracted or retained
by Tenant or its affiliates in connection with the renewal or extension of this
Lease.
Article 27
Interpretation and Construction
Section 27.1. Reasonable Consents. Whenever the consent of either party is
required hereunder, such consent shall not be unreasonable withheld.
Reasonableness under all such circumstances shall mean on the basis of rational,
objective facts and information sought and considered in good faith in order to
make a decision on the matter at hand which adequately protects the interests of
the party making the decision. Moreover, it is the intent and purpose of the
parties that no judge, hearing examiner or arbitrator shall substitute his or
her judgement for that of Tenant or Landlord hereunder, unless clear and
convincing evidence exists which shows that such party is not acting in good
faith.
Section 27.2. Waiver. The waiver by Landlord or Tenant of the breach of any
term, covenant or condition in this Lease shall not be deemed to be a waiver of
any subsequent breach of the same or any other term, covenant or condition. No
covenant, term or condition of this Lease shall be deemed to have been waived,
unless such waiver is in writing signed by the party charged therewith.
Section 27.3. No Accord and Satisfaction. No payment by Tenant or receipt
by Landlord of a lesser amount than actual rents and other charges herein
reserved shall be deemed to be a compromise or agreement to accept such lesser
sum in full satisfaction, nor shall any endorsement or statement on any check,
or in any letter accompanying a check, be deemed an accord and satisfaction as
to such lesser amount.
Section 27.4. Severability. If any term, covenant or condition of this
Lease or the application thereof to any person or circumstance shall to any
extent be invalid or enforceable, the remainder of this Lease or the application
of such term covenant or condition to persons or circumstances other than those
as to which it is held invalid or enforceable, shall not be affected thereby;
and each term, covenant and condition of this Lease shall be severable, valid
and enforceable independently to the fullest extent permitted by law.
Section 27.5. Automatic Termination. Notwithstanding anything in this Lease
to the contrary, if this Lease has not previously been terminated and the Term
has not commenced within one (1) year from the date hereof, this Lease shall
automatically terminate at the expiration of said period, and neither party
shall be liable to or have any rights against the other by reason thereof.
Section 27.6. Survival of Tenant's Obligations. All obligations of Tenant
which by their nature involve performance, in any particular, after the end of
the Term, or which cannot be ascertained to have been fully performed until
after end of the Term, shall survive the expiration or termination of the Lease.
Likewise, utility bills, taxes and other items payable by Tenant hereunder, the
amounts of which may not have been ascertained or billed to Tenant upon the
expiration or termination date, shall nonetheless be payable in full by Tenant
within ten (10) days after written notice thereof from Landlord.
Section 27.7. No Partnership. Nothing in this Lease shall be deemed or
construed by the parties hereto, nor by any third party, to create a
relationship between the parties hereto other than that of Landlord and Tenant,
nor does Landlord in any way or for any purpose become a partner in the conduct
of Tenant's business, nor a joint venturer or a member of a joint enterprise of
any kind with Tenant.
Section 27.8. Non-Binding Effects and Amendments. The submission of this
Lease for examination or execution shall not constitute a reservation or an
option for the Premises, and this Lease shall become effective only upon
execution, delivery and acceptance hereof by both parties, subject to receipt of
the consideration described in Section 7.1 above. Except as otherwise expressly
provided herein, no subsequent alteration, amendment, change or addition to this
Lease, nor any surrender of the Term shall be binding upon Landlord or Tenant
unless reduced to writing and signed by them.
Section 27.9. Headings. The article and section headings used throughout
this Lease are for convenience of reference only and shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this Lease.
Section 27.10. Entire Agreement; Amendments. This Lease comprises the
entire agreement and understanding of the parties; and all prior negotiations,
correspondence, proposals, verbal understandings and other prior documents are
hereby merged into this Lease, which shall not be amended or modified except by
a formal written instrument executed by both parties.
Section 27.11. Integration. It is the expressed intent of the party that
the provisions of this Lease be construed and interpreted in harmony as an
integrated whole to the maximum extent possible. However, in the event of an
irreconcilable conflict between the language in the Special Provisions and the
language in the General Provisions of this Lease, the Special Provisions shall
govern.
END OF GENERAL PROVISIONS OF THE LEASE.
THE ATTACHED SPECIAL PROVISIONS RIDER IS
INCORPORATED AS AN INTEGRAL PART OF THIS
LEASE.
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